61770 Federal Register / Vol. 79, No. 199 / Wednesday, October 15, 2014 / Rules and Regulations 

State and location Community 

No. 

Effective date authorization/cancellation of 

sale of flood insurance in community 

Current effective 

map date 

Date certain 

Federal assistance no longer 

available in 

SFHAs 

Twin Lakes, City of, Freeborn County .. 270139 September 22, 1977, Emerg; May 3, 1982, 

Reg; November 19, 2014, Susp.

.....do ................ Do. 

* do = Ditto. 

Code for reading third column: Emerg.—Emergency; Reg.—Regular; Susp.—Suspension. 

Dated: September 29, 2014. 

David L. Miller, 

Associate Administrator, Federal Insurance 

and Mitigation Administration, Department 

of Homeland Security, Federal Emergency 

Management Agency. 

[FR Doc. 2014–24417 Filed 10–14–14; 8:45 am] 

BILLING CODE 9110–12–P 

LEGAL SERVICES CORPORATION 

45 CFR Part 1614 

Private Attorney Involvement 

AGENCY: Legal Services Corporation. 

ACTION: Final rule. 

SUMMARY: This final rule updates the 

Legal Services Corporation (LSC or 

Corporation) regulation on private 

attorney involvement (PAI) in the 

delivery of legal services to eligible 

clients. 

DATES: The rule will be effective 

November 14, 2014. 

FOR FURTHER INFORMATION CONTACT: 

Stefanie K. Davis, Assistant General 

Counsel, Legal Services Corporation, 

3333 K Street NW., Washington, DC 

20007, (202) 295–1563 (phone), (202) 

337–6519 (fax), sdavis@lsc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Private Attorney Involvement 

In 1981, LSC issued the first 

instruction (‘‘Instruction’’) 

implementing the Corporation’s policy 

that LSC funding recipients dedicate a 

percentage of their basic field grants to 

involving private attorneys in the 

delivery of legal services to eligible 

clients. 46 FR 61017, 61018, Dec. 14, 

1981. The goal of the policy was to 

ensure that recipients would provide 

private attorneys with opportunities to 

give legal assistance to eligible clients 

‘‘in the most effective and economical 

manner and consistent with the 

purposes and requirements of the Legal 

Services Corporation Act.’’ Id. at 61017. 

The Instruction gave recipients 

guidance on the types of opportunities 

that they could consider, such as 

engaging private attorneys in the direct 

representation of eligible clients or in 

providing community legal education. 

Id. at 61018. Recipients were directed to 

consider a number of factors in deciding 

which activities to pursue, including the 

legal needs of eligible clients, the 

recipient’s priorities, the most effective 

and economical means of providing 

legal assistance, linguistic and cultural 

barriers to effective advocacy, conflicts 

of interest between private attorneys 

and eligible clients, and the substantive 

expertise of the private attorneys 

participating in the recipients’ projects. 

Id. 

LSC published the first PAI rule in 

1984. 49 FR 21328, May 21, 1984. The 

new regulation adopted the policy and 

procedures established by the 

Instruction in large part. The rule 

adopted an amount equivalent to 12.5% 

of a recipient’s basic field grant as the 

amount recipients were to spend on PAI 

activities. Id. The rule also adopted the 

factors that recipients were to consider 

in determining which activities to 

pursue and the procedures by which 

recipients were to establish their PAI 

plans. Id. at 21328–29. Finally, the rule 

incorporated the Instruction’s 

prohibition on using revolving litigation 

funds as a method of engaging private 

attorneys. Id. at 21329. 

Over the course of the next two years, 

LSC amended the PAI rule in several 

material respects. In recognition of 

LSC’s belief that ‘‘the essence of PAI is 

the direct delivery of legal services to 

the poor by private attorneys,’’ LSC 

introduced a provision requiring 

recipients to meet at least part of their 

PAI requirement by engaging private 

attorneys to provide legal assistance 

directly to eligible clients. 50 FR 48586, 

48588, Nov. 26, 1985. At the same time, 

LSC introduced rules governing joint 

ventures, waivers, and sanctions for 

failure to comply with the PAI 

requirement, in addition to establishing 

simplified audit rules. Id. at 48587–89. 

The following year, LSC made two 

substantive changes to the rule. First, 

LSC included a definition for the term 

private attorney, which the Corporation 

defined as ‘‘an attorney who is not a 

staff attorney as defined in § 1600.1 of 

these regulations.’’ 51 FR 21558, June 

13, 1986. Second, LSC promulgated the 

‘‘blackout provision,’’ which prohibited 

recipients from counting toward their 

PAI requirement payments made to 

individuals who had been staff 

attorneys within the preceding two 

years. Id. at 21558–59. 

LSC last amended part 1614 in 2013 

as part of the final rule revising LSC’s 

enforcement procedures. 79 FR 10085, 

Feb. 13, 2013. The only effect of the 

2013 amendments was to harmonize 

part 1614 with the enforcement rules by 

eliminating references to obsolete rules 

and replacing them with references to 

the new rules. Id. at 10092. 

II. The Pro Bono Task Force 

On March 31, 2011, the LSC Board of 

Directors (Board) approved a resolution 

establishing the Pro Bono Task Force. 

Resolution 2011–009, ‘‘Establishing a 

Pro Bono Task Force and Conferring 

Upon the Chairman of the Board 

Authority to Appoint Its Members,’’ 

Mar. 31, 2011, http://www.lsc.gov/

board-directors/resolutions/resolutions2011. The purpose of the Task Force 

was to ‘‘identify and recommend to the 

Board new and innovative ways in 

which to promote and enhance pro bono 

initiatives throughout the country[.]’’ Id. 

The Chairman of the Board appointed to 

the Task Force individuals representing 

legal services providers, organized pro 

bono programs, the judiciary, law firms, 

government attorneys, law schools, bar 

leadership, corporate general counsels, 

and technology providers. 

The Task Force focused its efforts on 

identifying ways to increase the supply 

of lawyers available to provide pro bono 

legal services while also engaging 

attorneys to reduce the demand for legal 

services. Legal Services Corporation, 

Report of the Pro Bono Task Force at 2, 

October 2012, available at http://

lri.lsc.gov/legal-representation/privateattorney-involvement/resources. 

Members considered strategies for 

expanding outreach to private attorneys 

and opportunities for private attorneys 

to represent individual clients in areas 

of interest to the attorneys. In addition, 

the Task Force explored strategies, such 

as appellate advocacy projects or 

collaborations with special interest 

groups, to help private attorneys address 

systemic problems as a way to decrease 

the need for legal services on a larger 


wreier-aviles on DSK5TPTVN1PROD with RULES
Federal Register / Vol. 79, No. 199 / Wednesday, October 15, 2014 / Rules and Regulations 61771 

scale than can be achieved through 

individual representation. Id. Finally, 

the Task Force considered ways in 

which volunteers, including law 

students, paralegals, and members of 

other professions, could better be used 

to address clients’ needs. Id. 

In October 2012, the Task Force 

released its report to the Corporation. 

The Task Force made four overarching 

recommendations to LSC in its report. 

Recommendation 1: LSC Should Serve as 

an Information Clearinghouse and Source of 

Coordination and Technical Assistance to 

Help Grantees Develop Strong Pro Bono 

Programs 

Recommendation 2: LSC Should Revise Its 

Private Attorney Involvement (PAI) 

Regulation to Encourage Pro Bono. 

Recommendation 3: LSC Should Launch a 

Public Relations Campaign on the 

Importance of Pro Bono 

Recommendation 4: LSC Should Create a 

Fellowship Program to Foster a Lifelong 

Commitment to Pro Bono 

The Task Force also requested that the 

judiciary and bar leaders assist LSC in 

its efforts to expand pro bono by, for 

example, changing or advocating for 

changes in court rules that would allow 

retired attorneys or practitioners 

licensed outside of a recipient’s 

jurisdiction to engage in pro bono legal 

representation. Id. at 25–27. 

Collaboration among LSC recipients, the 

private bar, law schools, and other legal 

services providers was a theme running 

throughout the Task Force’s 

recommendations to the Corporation. 

Recommendation 2 provided the 

impetus for the NPRM. 

Recommendation 2 had three subparts. 

Each recommendation focused on a 

portion of the PAI rule that the Task 

Force identified as posing an obstacle to 

effective engagement of private 

attorneys. Additionally, each 

recommendation identified a policy 

determination of the Corporation or an 

interpretation of the PAI rule issued by 

the Office of Legal Affairs (OLA) that the 

Task Force believed created barriers to 

collaboration and the expansion of pro 

bono legal services. The three subparts 

are: 

2(a)—Resources spent supervising and 

training law students, law graduates, deferred 

associates, and others should be counted 

toward grantees’ PAI obligations, especially 

in ‘‘incubator’’ initiatives. 

2(b)—Grantees should be allowed to spend 

PAI resources to enhance their screening, 

advice, and referral programs that often 

attract pro bono volunteers while serving the 

needs of low-income clients. 

2(c)—LSC should reexamine the rule that 

mandates adherence to LSC grantee case 

handling requirements, including that 

matters be accepted as grantee cases in order 

for programs to count toward PAI 

requirements. 

Id. at 20–21. 

The Task Force observed in 

Recommendation 2 that the ‘‘PAI 

regulation has resulted in increased 

collaboration between LSC grantees and 

private attorneys,’’ but that the legal 

market has changed since the rule’s 

issuance. Id. at 20. The Task Force 

suggested that ‘‘there are certain areas 

where the regulation might productively 

be revised to ensure that LSC grantees 

can use their grants to foster pro bono 

participation.’’ Id. For example, the 

omission of services provided by law 

students and other non-lawyers and the 

poor fit of the ‘‘staff attorney’’ construct 

in the definition of ‘‘private attorney’’ 

created complications for recipients 

attempting to fulfill the PAI 

requirement. Id. at 20–21. The Task 

Force encouraged LSC to undertake a 

‘‘thoughtful effort to reexamine the 

regulation to ensure that it effectively 

encourages pro bono participation.’’ Id. 

at 22. 

III. History of This Rulemaking 

After receiving the PBTF’s report, LSC 

determined that it would be necessary 

to revise part 1614 to respond to some 

of the Task Force’s recommendations. 

On January 26, 2013, LSC’s Board of 

Directors authorized the initiation of 

rulemaking to explore options for 

revising the PAI requirement. 

LSC determined that an examination 

of the PAI rule within the context of the 

Task Force recommendations would 

benefit from early solicitation of input 

from stakeholders. LSC therefore 

published two requests for information 

seeking both written comments and 

participation in two rulemaking 

workshops held in July and September 

2013. The first request for information 

focused discussion specifically on the 

three parts of Recommendation 2. 78 FR 

27339, May 10, 2013. The second 

request for information, published after 

the July workshop, supplemented the 

first with questions developed in 

response to issues raised at the July 

workshop. 78 FR 48848, Aug. 12, 2013. 

The closing date of the comment period 

for both requests for information was 

October 17, 2013. 

The Corporation considered all 

comments received in writing and 

provided during the rulemaking 

workshops in the development of the 

NPRM. On April 8, 2014, the Board 

approved the NPRM for publication, 

and the NPRM was published in the 

Federal Register on April 16, 2014. 79 

FR 21188, Apr. 16, 2014. The comment 

period was open for sixty days, and 

closed on June 16, 2014. Id. 

LSC analyzed all comments received 

and sought additional input from the 

Office of Program Performance (OPP), 

the Office of Compliance and 

Enforcement (OCE), and the Office of 

Inspector General (OIG). For the reasons 

discussed in the Section-by-Section 

Analysis below, LSC is not making 

significant revisions to the proposed 

rule. 

LSC presented this final rule to the 

Committee on October 5, 2014, at which 

time the Committee voted to 

recommend that the Board adopt the 

rule, subject to minor amendments. On 

October 7, 2014, the Board voted to 

adopt the amended final rule and 

approved it for publication in the 

Federal Register. 

All of the comments and related 

memos submitted to the LSC Board 

regarding this rulemaking are available 

in the open rulemaking section of LSC’s 

Web site at http://www.lsc.gov/about/

regulations-rules/open-rulemaking. 

After the effective date of the rule, those 

materials will appear in the closed 

rulemaking section at http://

www.lsc.gov/about/regulations-rules/

closed-rulemaking. 

IV. Section-by-Section Discussion of 

Comments and Regulatory Provisions 

LSC received eight comments during 

the public comment period. LSC 

subsequently received one additional 

comment. Four comments were 

submitted by LSC recipients—California 

Rural Legal Assistance (CRLA) (jointly 

with the Legal Services Association of 

Michigan (LSAM), an organization 

representing fourteen LSC and non-LSC 

civil legal services providers in 

Michigan), Northwest Justice Project 

(NJP), Legal Aid Society of Northeastern 

New York (LASNNY), and Legal 

Services NYC (LSNYC). The National 

Legal Aid and Defender Association 

(NLADA), the American Bar Association 

(ABA), through its Standing Committee 

on Legal Aid and Indigent Defendants 

and with substantial input from the 

Standing Committee on Pro Bono and 

Public Service, the New York State Bar 

Association, the California Commission 

on Access to Justice (Access 

Commission), and the LSC Office of 

Inspector General (OIG) submitted the 

other five comments. 

Commenters were generally 

supportive of the changes LSC proposed 

that expanded opportunities to engage 

interested individuals in providing legal 

assistance and legal information to the 

poor; however, OIG took no position on 

the proposed changes. Overall, the 

public comments endorsed LSC’s 

decision to adopt the part of 

Recommendation 2(a) of the PBTF 

report that advocated allowing 

recipients to allocate resources spent 


wreier-aviles on DSK5TPTVN1PROD with RULES
61772 Federal Register / Vol. 79, No. 199 / Wednesday, October 15, 2014 / Rules and Regulations 

supervising and training law graduates, 

law students, and others to their PAI 

requirements. The Access Commission 

noted that this proposed change 

‘‘reflects the reality that law students, 

law graduates, and other professionals 

can and do play an important role in 

helping to meet unmet legal needs in a 

cost-effective and sustainable manner.’’ 

LSNYC stated that the changes would 

‘‘harmonize[] PAI regulations with the 

pro bono standards of other funders and 

the pro bono community at large.’’ 

Comments from the public also 

praised LSC’s decision to adopt the part 

of Recommendation 2(a) that advocated 

exempting attorneys who had 

participated in ‘‘incubator’’ projects 

from the two-year blackout period on 

payments to former staff attorneys. For 

example, NLADA commented that the 

revision would ‘‘assist[] LSC programs 

in creating incubator programs that 

benefit new attorneys by giving them a 

start in practice [and] benefit[] 

recipients by providing trained 

attorneys to handle cases for a modest 

payment thus expanding the supply of 

available lawyers.’’ 

Finally, the public comments 

supported LSC’s decision to amend part 

1614 in order to reverse the effect of two 

opinions published by OLA, AO–2011– 

001 and EX–2008–1001. These opinions 

interpreted part 1614 as requiring 

recipients to accept eligible clients as 

their own in order to allocate to their 

PAI requirements the costs incurred by 

either providing support to a pro bono 

clinic at which participants received 

individualized legal assistance or to 

screening clients and referring them to 

an established network of volunteer 

attorneys for placement. LSC’s decision 

responded to Recommendations 2(b) 

and 2(c) of the PBTF report. NJP, which 

operates the screening and referral 

program that was the subject of AO– 

2011–001, specifically commented that 

it was ‘‘heartened by the fact that under 

the proposed revisions it appears that 

NJP’s significant support for the 

statewide pro bono delivery system in 

Washington, through its telephonic 

intake and referral system . . . will now 

enjoy recognition of the important role 

this support plays to enhance private 

bar involvement efforts statewide.’’ The 

Access Commission supported the 

revision as a ‘‘sensible and efficient 

proposal[] that promote[s] use of private 

attorneys, conservation of program 

resources, and meeting unmet legal 

needs.’’ The ABA and NLADA similarly 

supported amending the rule to reverse 

the effect of the two opinions. 

Proposed § 1614.1—Purpose. 

LSC proposed revising this section to 

state more clearly the purpose of the 

PAI rule and to encourage the inclusion 

of law students, law graduates, and 

other professionals in recipients’ PAI 

plans. LSC received no public 

comments on this section. LSC is 

making a technical change to the first 

sentence of the section to make clear 

that PAI programs are to be conducted 

‘‘within the established priorities of that 

program, and consistent with LSC’s 

governing statutes and regulations[.]’’ 

Proposed § 1614.2—General Policy 

LSC proposed to consolidate all 

statements of policy scattered 

throughout existing part 1614 into this 

section. LSC received no public 

comments on this section. LSC is 

making technical revisions to § 1614.2 

to make clear that the PAI requirement 

applies only to the annualized award to 

provide legal services to the general 

low-income population living in a 

specific geographic area (‘‘Basic FieldGeneral grants’’). Three types of awards 

are not subject to the PAI requirement: 

awards to provide legal services to 

Native Americans living in a specific 

geographical area, related to their status 

as Native Americans (‘‘Basic FieldNative American grants’’) and awards to 

provide legal services to migrant 

farmworkers living in a specific 

geographical area, related to their status 

as migrant farmworkers (‘‘Basic FieldMigrant grants’’), and any grants outside 

of basic field grants, such as Technology 

Initiative Grants and the grants to be 

awarded from the Pro Bono Innovation 

Fund. 

Proposed § 1614.3—Definitions 

Organizational note. Because LSC is 

adding a definition for the term 

incubator project as § 1614.3(b), the 

terms defined in paragraphs (b)–(i) in 

the NPRM will be redesignated as 

paragraphs (c)–(j) in this final rule. In 

the following discussion of the 

comments and changes to the proposed 

rule, LSC will refer to the redesignated 

paragraphs by the designation used in 

the final rule, except where the 

proposed rule is explicitly referenced. 

§ 1614.3(a) Attorney. LSC is making 

editorial changes to the proposed 

definition of the term attorney in 

response to staff comments. Some 

commenters found the proposed 

definition, which simply excepted 

attorney from the definition provided in 

45 CFR 1600.1 for purposes of this part, 

awkward. LSC revised the definition to 

mirror the § 1600.1 definition to the 

extent possible and still have it make 

sense within the context of the PAI rule. 

LSC also retained the part of the NPRM 

definition that stated the § 1600.1 

definition does not apply to part 1614. 

§ 1614.3(b) Incubator project. LSC is 

adding a definition for the term 

incubator project in response to staff 

comments. LSC took the definition 

proposed in the version of the final rule 

presented to the Committee from 

proposed § 1614.5(c)(2), which 

described an incubator project as ‘‘a 

program to provide legal training to law 

graduates or newly admitted attorneys 

who intend to establish their own 

independent law practices.’’ 79 FR 

21188, 21200, Apr. 15, 2014. At the 

Committee meeting on October 5, 2014, 

the ABA proposed revising the 

definition to include law students as 

individuals who could participate in an 

incubator project and to make clear that 

participation in an incubator project, 

rather than the project itself, is timelimited. The Committee agreed to revise 

the definition consistent with the ABA’s 

proposal, and the version of the final 

rule approved by the Board contained 

the new language. 

§ 1614.3(c) Law graduate. Section 

1614.3(b) proposed to define the term 

law graduate to mean an individual who 

has completed the educational or 

training requirements required for 

application to the bar in any U.S. state 

or territory. LSC received no comments 

on this definition. 

§ 1614.3(d) Law student. Proposed 

1614.3(c) defined the term law student 

to include two groups. The first was 

individuals who are or have been 

enrolled in a law school that can 

provide the student with a degree that 

is a qualification for application to the 

bar in any U.S. state or territory. The 

second was individuals who are or have 

been participating in an apprenticeship 

program that can provide the individual 

with sufficient qualifications to apply 

for the bar in any U.S. state or territory. 

LSC received no comments on this 

definition. 

§ 1614.3(e) Legal assistance. This 

proposed definition was substantially 

adapted from the LSC CSR Handbook, 

and is different from the term legal 

assistance defined in the LSC Act and 

in § 1600.1 of these regulations. LSC 

proposed to adopt the CSR Handbook 

definition in the PAI rule for 

consistency in the treatment of legal 

assistance and compliance with 

eligibility screening requirements by 

both recipients and private attorneys. 

LSC received no comments on this 

definition. 

§ 1614.3(f) Legal information. LSC 

proposed to define the term legal 

information as the provision of 


wreier-aviles on DSK5TPTVN1PROD with RULES
Federal Register / Vol. 79, No. 199 / Wednesday, October 15, 2014 / Rules and Regulations 61773 

substantive legal information that is not 

tailored to address an individual’s 

specific legal problem and that does not 

involve applying legal judgment or 

recommending a specific course of 

action. This definition was also adapted 

substantially from the CSR Handbook 

for the same reasons stated above with 

respect to the definition of legal 

assistance. LSC received no comments 

on this definition. 

§ 1614.3(g) Other professional. In the 

NPRM, LSC proposed to define other 

professional as any individual who is 

not engaged in the practice of law, is not 

employed by the recipient, and is 

providing services to an LSC recipient 

in furtherance of the recipient’s 

provision of legal information or legal 

assistance to eligible clients. LSC 

intended this definition to cover a wide 

spectrum of professionals whose 

services will help recipients increase 

the effectiveness and efficiency of their 

programs. Such professionals include 

paralegals, accountants, and attorneys 

who are not authorized to practice law 

in the recipient’s jurisdiction (such as 

an attorney licensed in another 

jurisdiction or a retired attorney who is 

prohibited from practicing by the bar 

rules). These individuals may provide 

services within their areas of expertise 

to a recipient that would improve the 

recipient’s delivery of legal services. For 

example, a volunteer paralegal 

representing a client of the recipient in 

a Supplemental Security Income case or 

a volunteer accountant providing a legal 

information program on the earned 

income tax credit would constitute 

other professionals assisting a recipient 

in its delivery of legal information or 

legal assistance to eligible clients. LSC 

received no comments on this 

definition. 

LSC will replace the phrase ‘‘limited 

license to provide legal services’’ with 

the term ‘‘limited license to practice 

law’’ to reflect more accurately what 

limited license legal technicians and 

others similarly situated are authorized 

to do. 

§ 1614.3(h) PAI clinic. Proposed 

§ 1614.3(g) defined the term PAI clinic 

as ‘‘an activity under this part in which 

private attorneys, law students, law 

graduates, or other professionals are 

involved in providing legal information 

and/or legal assistance to the public at 

a specified time and location.’’ PAI 

clinics may consist solely of a legal 

information session on a specific topic, 

such as bankruptcy or no-contest 

divorce proceedings, that are open to 

the public and at which no individual 

legal assistance is provided. 

Additionally, a PAI clinic may be open 

to the public for either the provision of 

individual legal assistance or a referral 

for services from another organization. 

Some clinics are hybrids of the two 

models, and some clinics are aimed at 

providing technical assistance to pro se 

litigants, such as help understanding the 

court procedures or filling out 

pleadings. The common thread among 

the activities considered to be clinics is 

that they are open to the public and 

distinct from a recipient’s regular legal 

practice. LSC received no comments on 

this definition. 

§ 1614.3(i) Private attorney. Comment 

1: LSC received four comments 

objecting to the exclusion of attorneys 

‘‘employed by a non-LSC-funded legal 

services provider acting within the 

terms of [their] employment with the 

non-LSC-funded provider’’ from the 

definition of private attorney. 79 FR 

21188, 21199, Apr. 15, 2014. NLADA, 

the Access Commission, and CRLA/

LSAM all asserted that the proposed 

exclusion was ambiguous and overly 

broad, and would prevent recipients 

from including collaborations with 

certain other non-profit organizations 

within their PAI plans. The ABA also 

observed that the term ‘‘legal services 

provider’’ was ambiguous and could be 

interpreted as including private law 

firms. 

CRLA/LSAM observed that 

[o]ften times, due to lack of profitability, 

logistics and conflicts the only law firms 

willing to join rural LSC recipients as 

attorneys willing to co-counsel education, 

housing and environmental justice cases in 

the remote rural communities we work in are 

attorneys employed by a non-LSC-funded, 

non-profit legal services provider who is 

acting within the terms of his/her 

employment . . . . For rural grantees to 

engage in co-counseling cases, they largely 

rely on non-LSC funded non-profits with an 

expertise in specific legal areas, but no 

geographic ties . . . to these rural 

communities. 

Finally, they observed that AO–2009– 

1004 only prohibited recipients from 

allocating to their PAI requirements 

costs associated with subgrants to staffmodel legal services providers to 

operate a hotline that provided advice 

and referrals. AO–2009–1004 did not, 

they continued ‘‘exclude from PAI 

counting staff time facilitating, 

supervising, or co-counseling with these 

same non-profit, non-LSC staff model 

legal providers who donate their time to 

a recipient.’’ It is the donation of the 

services, rather than the donor’s nature 

as a provider of legal services to the 

poor, that ‘‘is at the heart of pro bono 

legal services and should be at the heart 

of all LSC PAI plans.’’ CRLA/LSAM 

recommended that LSC revise the 

exclusion to apply only to ‘‘[a]n attorney 

who receives more than half of his or 

her professional income from a nonLSC-funded legal services provider 

which receives a subgrant from any 

recipient, acting within the terms of his 

or her employment with the non-LSCfunded provider.’’ 

The Access Commission also 

observed that the ‘‘proposed exclusion 

is ambiguous and overly broad and may 

unnecessarily restrict the pool of 

attorneys eligible to volunteer with LSCfunded legal services programs.’’ Like 

CRLA/LSAM, the Access Commission 

highlighted California’s particular 

concerns about having a limited pool of 

attorneys available to work in its ‘‘vast 

rural and underserved areas.’’ Unlike 

CRLA/LSAM, the Access Commission 

recommended that LSC narrow the 

exclusion to apply only to ‘‘non-profit 

organization[s] whose primary purpose 

is delivery of civil legal services to the 

poor . . . .’’ They urged that ‘‘the 

proposed rules be flexible enough to 

encourage the participation of attorneys 

who do not usually serve low income 

clients while permitting LSC-funded 

legal services programs to recruit and 

work with available attorneys and 

organizations in their local 

communities.’’ 

Finally, NLADA advocated the 

inclusion of attorneys who work for 

non-profit organizations whose primary 

purpose is not the delivery of legal 

services to the poor. As examples, 

NLADA offered two organizations: the 

American Association for Retired 

Persons (AARP), and the protection and 

advocacy systems (P&As) funded by the 

federal government to ensure the rights 

of individuals with the full range of 

disabilities. Nationally, AARP provides 

an array of services and benefits to 

members; in the District of Columbia, 

AARP supports Legal Counsel for the 

Elderly, which provides free legal 

assistance in civil cases to residents 

over the age of 60, and in disability 

cases to residents over the age of 55. 

P&As receive funding from the U.S. 

Department of Education, the U.S. 

Department of Health and Human 

Services, and the Social Security 

Administration, to engage in systemic 

advocacy efforts and to provide 

individual assistance to individuals 

with the full range of emotional, 

developmental, and physical 

disabilities. P&As may provide legal 

representation to individuals free of 

charge or on a sliding scale fee basis. 

According to NLADA, these types of 

organizations ‘‘have invaluable 

specialized expertise and often strong 

relationships/collaborations with 

private firms operating for profit. 

Partnerships with these organizations 


wreier-aviles on DSK5TPTVN1PROD with RULES
61774 Federal Register / Vol. 79, No. 199 / Wednesday, October 15, 2014 / Rules and Regulations 

provide significant opportunities for 

collaborations that expand a recipient’s 

ability to effectively and efficiently 

serve clients and provide increased 

opportunities for private bar 

participation.’’ Similar to the Access 

Commission, NLADA recommended 

that LSC limit the exclusion to attorneys 

‘‘employed by a non-profit organization 

whose primary purpose is the delivery 

of civil legal services to the poor during 

any time that attorney is acting within 

the terms of his or her employment with 

that organization[.]’’ 

In its comment, the ABA stated that 

it agreed in principle with LSC’s view 

that the purpose of the PAI regulation is 

to engage lawyers who are not currently 

involved in the delivery of legal services 

to low-income individuals as part of 

their regular employment. The ABA 

recommended that LSC clarify that the 

term ‘‘legal services provider,’’ as used 

in the rule, means ‘‘an entity whose 

primary purpose is the delivery of free 

legal services to low-income 

individuals.’’ 

Response: LSC will revise the 

language in § 1614.3(i)(2)(ii) to narrow 

the exclusion to attorneys acting within 

the terms of their employment by a nonprofit organization whose primary 

purpose is the delivery of free civil legal 

services to low-income individuals. 

This definition is adapted from the New 

York State Bar Association’s definition 

of ‘‘pro bono service’’ in the context of 

the Empire State Counsel Program, 

which annually recognizes New York 

attorneys’ pro bono efforts, and is 

substantially similar to the definition 

recommended by the ABA. LSC 

understands the issues raised by CRLA, 

LSAM, the Access Commission, and 

NLADA, and appreciates the benefits 

that collaborations between LSC 

recipients and other non-profit 

organizations bring to the populations 

served by those collaborations. Within 

the context of the PAI rule, however, 

LSC believes that the focus should be on 

engaging attorneys who are not 

employed to provide free legal services 

to low-income individuals. 

Although LSC is excluding legal aid 

attorneys acting within the scope of 

their employment from the definition of 

private attorney, the revised language 

permits recipients to allocate costs to 

the PAI requirement associated with cocounseling arrangements or other 

collaborations with attorneys employed 

by organizations whose primary 

purpose is not the delivery of free legal 

services to low-income individuals. For 

example, although CRLA may no longer 

be able to count co-counseling with a 

legal aid organization toward its PAI 

requirement, it could allocate costs 

associated with co-counseling a case 

with California’s P&A to the PAI 

requirement. It also permits a recipient 

to count as a private attorney an 

attorney who is employed by an 

organization whose primary purpose is 

the delivery of free civil legal services 

to low-income individuals, but who is 

participating in a PAI clinic supported 

by a recipient on the attorney’s own 

time. 

LSC wants to be clear that its decision 

to exclude legal aid attorneys from the 

definition of private attorney does not 

mean that recipients should not 

collaborate with these providers in the 

delivery of legal information and legal 

assistance to eligible clients. LSC 

supports and encourages recipients to 

work creatively and to build 

relationships necessary to increase their 

effectiveness at achieving positive 

outcomes for their clients. The 

exclusion simply means that recipients 

may not allocate costs associated with 

those collaborations to the PAI 

requirement. 

Comment 2: LSC received two 

comments on § 1614.3(h)(2)(i), which 

proposed to exclude from the definition 

of private attorney attorneys employed 

more than 1,000 hours per year by an 

LSC recipient or subrecipient. In their 

joint comment, CRLA and LSAM 

observed that proposed § 1614.3(h)(2)(i) 

precluded the participation of attorneys 

who retired or otherwise moved on from 

an LSC recipient, but wanted to 

volunteer to handle cases or support the 

recipient in some fashion. They stated 

that, according to the history of the PAI 

rule, the two-year restriction on PAI 

payments to attorneys who had left a 

recipient’s employ was intended to 

prevent ‘‘situations in which programs 

had laid off staff attorneys and then 

contracted to pay these attorneys for 

doing the same work they had done 

before as staff.’’ 50 FR 48586, 48587, 

Nov. 26, 1985. They additionally noted 

that ‘‘for our purposes here, a recipient 

could co-counsel with these former staff 

members within 24 hours of their 

leaving the employ of a recipient and 

the staff time spent co-counseling with 

the former staff member could be 

counted as PAI.’’ 

NJP objected to proposed 

§ 1614.3(h)(2)(i) on similar grounds. NJP 

argued that the rule would 

exclude attorneys (1) who leave a recipient’s 

employ after 1001 hours during any year and 

then seek to volunteer for the program, 

including recently retired attorneys, 

attorneys leaving the recipient upon 

termination of a grant-based position, or 

attorneys leaving for private employment; 

and (2) who volunteer for a recipient, but 

may on occasion be employed on a shortterm basis to fill temporary needs arising 

from staff vacancies or absences such as an 

extended family medical leave, military 

leave, short-term special project grant 

funding, or emergency needs occurring from 

a sudden staff departure.’’ 

In NJP’s view, ‘‘[g]iven that a recipient 

cannot allocate non-PAI activity to PAI 

costs in any event, there seems little 

reason to limit who is considered a 

‘private attorney’ for purposes of 

supporting their pro bono services based 

on duration of employment by a 

recipient, so long as costs are not 

allocated for time spent while they are 

employed by the recipient.’’ NJP urged 

LSC to eliminate paragraph (2)(i) from 

the definition of private attorney. 

Response: LSC did not intend the 

result described by the commenters. In 

response to their comment, LSC will 

revise the language in the definition of 

private attorney. LSC will replace the 

1,000 hours per calendar year timeframe 

with a ‘‘half time’’ standard. LSC 

believes that using a half time standard 

will more clearly capture its intent that 

recipients assess an attorney’s 

employment status with the recipient 

contemporaneously with the services for 

which they seek to allocate costs to the 

PAI requirement. In other words, if a 

recipient employs an attorney ten hours 

per week, and that attorney also wishes 

to volunteer to provide advice and 

counsel at a PAI clinic supported by the 

recipient, the recipient may consider the 

part-time attorney a private attorney at 

the time he or she is providing services 

at the PAI clinic. 

LSC will also make two other changes 

to § 1614.3(i) in the final rule. First, LSC 

will define private attorney as meaning 

an attorney defined in § 1614.3(a), and 

relocate all the exceptions to the 

definition to paragraphs (i)(1)–(3). 

Second, LSC will add paragraph (i)(4) to 

clarify that private attorney does not 

include an attorney acting within the 

terms of his or her employment by a 

component of a non-profit organization, 

where the component’s primary purpose 

is the delivery of free civil legal services 

to low-income individuals. In other 

words, attorneys working for the legal 

aid component of a non-profit social 

services organization whose overall 

mission is to deliver free social services 

to low-income individuals are not 

private attorneys for purposes of part 

1614. This exclusion is consistent with 

the rule’s primary purpose of engaging 

attorneys who do not provide legal 

assistance to the poor in the delivery of 

legal information and legal assistance to 

eligible clients. 

§ 1614.3(j) Screen for eligibility. The 

proposed definition made clear that 

individuals receiving legal assistance 


wreier-aviles on DSK5TPTVN1PROD with RULES
Federal Register / Vol. 79, No. 199 / Wednesday, October 15, 2014 / Rules and Regulations 61775 

through PAI activities must get the same 

level of screening that recipients use for 

their own legal assistance activities. 

Screening for eligibility includes 

screening for income and assets, eligible 

alien status, citizenship, whether the 

individual’s case is within the 

recipient’s priorities, and whether the 

client seeks assistance in an area or 

through a strategy that is restricted by 

the LSC Act, the LSC appropriation acts, 

and applicable regulations. Screening 

for eligibility can also include 

determining whether a client can be 

served using non-LSC funds. LSC 

received no comments on this 

definition. 

§ 1614.3(k) Subrecipient. LSC will add 

a definition for the term subrecipient to 

the final rule. As LSC considered the 

public comments, particularly the 

comments discussing the definition of 

the term private attorney, and 

recipients’ use of subgrants and fee-forservice arrangements to carry out PAI 

activities, LSC discovered that the term 

subrecipient was over-inclusive for 

purposes of the PAI rule. Subrecipient, 

as defined in § 1627.2(b)(1) includes feefor-service arrangements through which 

attorneys represent a recipient’s clients, 

such as under a contract or a judicare 

arrangement, when the cost of such 

arrangement exceeds $25,000. 

LSC did not intend to exclude from 

the definition of private attorney 

attorneys working for a subrecipient that 

meets the definition solely because an 

LSC recipient is paying the entity more 

than $25,000 to provide legal 

representation to the recipient’s clients 

on a contract or judicare basis. For 

purposes of part 1614, LSC will define 

subrecipient as not including entities 

receiving more than $25,000 from a 

recipient to provide legal representation 

to the recipient’s clients on a contract or 

judicare basis. 

Proposed § 1614.4—Range of Activities 

§ 1614.4(a) Direct delivery of legal 

assistance to eligible clients. In the 

NPRM, LSC proposed to consolidate 

existing §§ 1614.3(a) and (d) into one 

paragraph. LSC also proposed to add 

paragraph (a)(2), which stated that 

direct delivery of legal assistance to 

eligible clients may include 

representation by a non-attorney in an 

administrative tribunal that permits 

non-attorney individuals to represent 

individuals. LSC received no comments 

on this section. 

§ 1614.4(b) Support and other 

activities. Comment: LSNYC expressed 

concern about LSC’s proposal to revise 

existing § 1614.4(b)(1) to exclude from 

PAI support activities pro bono work 

done on behalf of the recipient itself, 

rather than for a client. It referred to the 

ABA and Pro Bono Institute definitions 

of ‘‘pro bono,’’ which include legal work 

provided to organizations ‘‘in matters in 

furtherance of their organizational 

purposes, where the payment of 

standard legal fees would significantly 

deplete the organization’s economic 

resources or would be otherwise 

inappropriate,’’ and indicated that LSC’s 

decision to exclude work on behalf of 

organizations ‘‘deviate[s] from the wellreasoned standards of the pro bono 

community.’’ LSNYC stated that if it 

could no longer count toward its PAI 

requirement pro bono work provided to 

LSNYC as an organization, it would 

either have to spend ‘‘substantial 

amounts of money on attorneys for the 

organization’’ or ‘‘skimp[] on the 

resources that are available to effectively 

run the organization.’’ Finally, LSNYC 

argued that LSC’s proposed change 

would ‘‘ignore[] the contribution of 

many transactional attorneys’’ whose 

skill sets do not necessarily lend 

themselves to individual representation 

of clients or conducting legal 

information clinics. 

Response: LSC will retain the 

language from the NPRM, including the 

statement that support provided by 

private attorneys must be provided as 

part of a recipient’s delivery of legal 

information or legal assistance to 

eligible clients to count toward the PAI 

requirement. Since its original 

incarnation in 1981 as a special 

condition on LSC grant funds, the 

purpose of PAI has been to involve 

private attorneys in the delivery of legal 

services to eligible clients. It does not 

appear from the administrative record 

that LSC envisioned pro bono services 

to recipients themselves to be support 

activities within the context of the PAI 

rule. As a result, LSC views the 

language change proposed in the NPRM 

to represent a clarification of the 

existing rule, rather than a change in 

policy. 

LSC wants to be clear that LSC 

supports recipients’ efforts to leverage 

resources within their legal 

communities for the benefit of 

themselves and their clients. LSC 

recognizes the value or pro bono 

services provided to recipients 

themselves, as well as the value that 

providing such assistance returns to the 

pro bono attorneys. Recipients can, and 

should, continue to secure pro bono 

legal assistance with the issues they face 

as organizations whenever possible. For 

purposes of allocating costs to the PAI 

requirement, however, recipients must 

obtain services from private attorneys 

that inures primarily to the benefit of 

the recipients’ clients rather than to the 

recipient in its organizational capacity. 

Proposed § 1614.4(b)(4) PAI Clinics. 

Comment 1: LSC received three 

comments identifying ambiguity in the 

text of proposed § 1614.4(b)(4)(ii)(C). 

The Access Commission, the ABA, and 

NLADA remarked that although 

proposed § 1614.4(b)(4)(i) allows 

recipients to allocate costs to the PAI 

requirement associated with support to 

legal information clinics without 

screening for eligibility, 

§ 1614.4(b)(4)(ii)(C) appears to allow 

recipients to allocate costs to the PAI 

requirement associated with ‘‘hybrid’’ 

legal information and legal assistance 

clinics only if the legal assistance 

portion of the clinic screens for 

eligibility. All three commenters 

asserted that this result does not make 

sense because recipients may provide 

legal information without screening. In 

NLADA’s words, ‘‘there is no reason to 

prohibit the allocation of PAI to an LSC 

program’s support of a clinic’s legal 

information activities which are 

severable from the legal assistance 

activities of the clinic.’’ 

Response: LSC intended to allow 

recipients supporting hybrid PAI clinics 

to allocate to their PAI requirements 

costs associated with support to the 

legal information portion of the PAI 

clinic, regardless of whether the legal 

assistance portion of the PAI clinic 

screens for eligibility. In response to 

these comments, LSC will revise 

§ 1614.4(b)(4)(ii)(C) to make clear that, 

in the context of hybrid PAI clinics, 

recipients may allocate costs associated 

with support of the legal information 

portion of the PAI clinic to their PAI 

requirements. If the legal assistance 

portion of a hybrid PAI clinic screens 

for eligibility and only provides legal 

assistance to LSC-eligible individuals, 

the recipient may allocate costs 

associated with its support of both parts 

of the clinic to the PAI requirement. 

Comment 2: LASNNY commented 

that the proposed requirement for 

screening at legal assistance clinics 

would restrict it from continuing to 

participate in some of its current 

activities. As an example, LASNNY 

described its volunteers’ participation in 

the Albany County Family Court Help 

Center, which provides support and 

assistance to pro se litigants in family 

court. LASNNY stated that the program 

does not screen for income eligibility, 

citizenship, or eligible alien status, and 

that it was participating in the program 

at the request of the court’s presiding 

justice and the director of the court’s 

Access to Justice initiatives. As a 

solution, LASNNY proposed that 

recipients could use non-LSC funds to 


wreier-aviles on DSK5TPTVN1PROD with RULES
61776 Federal Register / Vol. 79, No. 199 / Wednesday, October 15, 2014 / Rules and Regulations 

provide services to clients who have not 

been screened for eligibility. 

Response: LSC believes that the 

screening requirement should not 

preclude recipients from providing 

support to unscreened clinics that give 

legal information to pro se litigants. In 

the NPRM, LSC proposed that recipients 

would be able to allocate to the PAI 

requirement costs associated with PAI 

clinics providing legal assistance only if 

the clinics screened for eligibility and 

only provided legal assistance to LSCeligible clients. LSC believes this 

approach is consistent with the April 9, 

1998 opinion of the LSC Office of the 

General Counsel (OGC), which 

addressed the regulatory requirements 

applicable to legal information provided 

by recipients in pro se clinics. In that 

opinion, OGC stated that the recipient, 

which had received a contract from the 

court to provide assistance to pro se 

litigants, did not need to comply with 

either the client retainer provision in 

part 1611 or the provision in part 1626 

that requires recipients to obtain 

citizenship attestations or 

documentation of eligible alien status. 

Importantly, OGC opined that 

compliance with the relevant provisions 

of parts 1611 and 1626 was not required 

‘‘as long as the litigants are pro se, they 

do not enter into an attorney-client 

relationship with [a recipient] attorney, 

[and] they are not applicants for or are 

not seeking legal representation from 

[the recipient.]’’ LSC believes that these 

principles should guide recipients’ 

thinking about whether supporting a 

PAI clinic that serves pro se litigants 

may be considered legal information 

clinics that do not require screening, or 

instead constitute legal assistance 

clinics that do. Regarding LASNNY’s 

suggestion that non-LSC funds could be 

used for services to unscreened clients, 

some restrictions, such as the alienage 

restriction in part 1626, apply to legal 

assistance that is provided with both 

LSC and non-LSC funds. 

Comment 3: The ABA commented 

that the NPRM did not include several 

important types of clinics within its 

scope. One type was the hybrid legal 

information/legal assistance clinic 

discussed above. A second type was a 

clinic with two components: ‘‘one in 

which LSC-eligible clients are provided 

pro bono advice by one group of 

lawyers, and another component in 

which non-eligible individuals are 

provided service by either staff of the 

clinic (who are not employees of a LSC 

recipient) or a separate group of pro 

bono lawyers.’’ In the model described 

by the ABA, individuals are prescreened and sent to the LSC recipient’s 

private attorney if they are LSC-eligible, 

and to attorneys in another part of the 

clinic if they are not. The ABA believes 

that LSC should allow recipients to 

support such clinics ‘‘because in many 

communities, the bar association wants 

to serve through its pro bono programs 

many people who cannot afford an 

attorney, not just those who fall within 

the LSC eligibility guidelines.’’ 

The ABA described a final model, in 

which a court or local bar association 

contacts an LSC recipient to ask for 

assistance in planning a pro bono clinic. 

According to the ABA, at the time the 

court or bar association asks for the 

recipient’s assistance, it may not be 

clear whether the clinic will provide 

legal information, legal assistance, or 

both, or whether it will screen for 

eligibility if it provides legal assistance. 

The ABA ‘‘regards these support 

activities as permissible and as ones that 

should count toward the PAI 

requirement because the LSC recipient 

is not assisting lawyers who will be 

helping ineligible clients, but is simply 

engaging in discussions initiated by the 

court or bar to explore options.’’ 

Response: As discussed above, LSC 

agrees that recipients may allocate to 

their PAI requirements costs associated 

with support of the legal information 

portion of a hybrid clinic, regardless of 

whether the legal assistance portion 

screens for eligibility. LSC also believes 

that recipients may support clinics of 

the second type described by the ABA. 

LSC’s concern about recipients’ 

providing support to clinics that do not 

screen for eligibility is that recipients 

will be diverting resources to activities 

that serve individuals who are not 

eligible for LSC-funded legal assistance. 

This concern is greatest in the context 

of a clinic where no screening occurs. It 

is still present in the context of a clinic 

that screens for eligibility and provides 

legal assistance to individuals who are 

not eligible for LSC-funded assistance, 

but the concern is lessened because the 

recipient’s support is limited to the part 

of the clinic that is providing legal 

assistance to LSC-eligible clients. 

With respect to the ABA’s third 

scenario, LSC agrees that the type of 

technical assistance described is a 

valuable service provided by recipients 

in furtherance of the court or bar 

association’s efforts to increase pro 

bono. LSC also agrees that it is 

consistent with the purposes of the PAI 

rule to allow recipients to allocate costs 

to the PAI requirement associated with 

providing support to courts or local bar 

associations in response to requests for 

assistance in setting up clinics at which 

private attorneys will provide legal 

information or legal assistance. 

However, LSC considers this type of 

assistance to be support provided to 

courts or local bar associations in their 

efforts to increase pro bono services, 

rather than as support for the operation 

of PAI clinic within the meaning of 

§ 1614.4(b)(4). Once the clinic begins 

providing legal information or legal 

assistance to the public, the recipient 

may provide support consistent with 

proposed § 1614.4(b)(4). 

LSC will address the ABA’s proposal 

by including a new paragraph (b)(4) that 

allows recipients to count toward their 

PAI requirements costs incurred 

assisting bar associations or courts with 

planning and establishing clinics at 

which private attorneys will provide 

legal information or legal assistance to 

the public. Consequently, LSC will 

redesignate proposed paragraphs (b)(4)– 

(b)(6) to paragraphs (b)(5)–(b)(7) in the 

final rule. 

Comment 4: NLADA recommended 

that LSC allow limited screening of 

individuals receiving legal assistance 

through PAI clinics. NLADA asserted 

that the eligibility screening 

requirement ‘‘is not necessary to ensure 

compliance with the LSC Act and other 

statutory restrictions[,]’’ and offered two 

alternatives. The first alternative was 

limited screening for financial eligibility 

and citizenship or eligible non-citizen 

status. NLADA suggested that ‘‘a clinic 

participant could be determined LSC 

eligible if the applicant attests that he is 

a U.S. citizen or has a green card and 

either has zero income or receives 

assistance under programs such as 

SNAP, TANF, Medicaid or SSI. While 

this limited screening may rule out 

eligible clients, the screening could 

serve as an acceptable and workable 

method for clinic participants to 

determine who should and who should 

not be referred to LSC program staff 

participating in the clinic for legal 

assistance.’’ The second alternative was 

periodic limited screening. Under this 

alternative, the clinic would 

occasionally conduct the limited 

screening described in the first option, 

and the recipient could use the results 

to ‘‘calculate the percentage of LSC 

eligible applicants served by the clinic 

and appropriately apportion LSC 

program resources used to support the 

clinic that can be allocated to PAI.’’ 

NLADA noted the additional benefit 

that ‘‘the clinic would then have the 

option to have LSC grantees not 

participate in the provision of legal 

assistance to individual clients or have 

procedures in place to conduct limited 

or full screening with LSC grantees only 

providing legal assistance to LSC 

eligible individuals.’’ 

Response: LSC will not revise the 

requirement for PAI clinics to screen for 


wreier-aviles on DSK5TPTVN1PROD with RULES
Federal Register / Vol. 79, No. 199 / Wednesday, October 15, 2014 / Rules and Regulations 61777 

eligibility prior to providing legal 

assistance to individuals. During the 

April 2014 Committee meeting in 

Washington, DC, LSC made clear that it 

was willing to consider alternatives to 

the proposed screening requirement if 

the alternatives were supported by a 

legal analysis of how the alternatives 

would ensure compliance with the LSC 

Act, the restrictions contained in LSC’s 

appropriations acts, and LSC’s 

regulations. No commenter, however, 

has offered any legal analysis 

supporting the assertion that screening 

‘‘is not necessary to ensure compliance 

with the LSC Act and other statutory 

restrictions.’’ 

LSC considered the issue of limited 

screening at length during the 

development of the NPRM. During the 

July 2013 and September 2013 

rulemaking workshops, and in response 

to the two Requests for Information 

published by LSC last year, multiple 

commenters recommended that LSC 

allow limited screening for PAI clinics. 

When discussing screening in this 

context, commenters expressed minimal 

concern about the potential for assisting 

clients who are ineligible for LSCfunded services. Most commenters 

focused on expanding the availability of 

private attorneys to provide pro bono 

legal services and not on the scope of 

LSC’s legal obligations to ensure that 

LSC resources are not used for restricted 

activities. One commenter suggested 

that the test for the PAI rule should be 

whether the activity is targeted at the 

base of eligible clients, even if the 

recipient cannot know whether every 

person assisted would be eligible. 

Another spoke about screened advice 

clinics, recommending that recipients 

should be able to count resources 

toward the PAI requirement for the time 

recipients spend supervising such 

clinics. OIG expressed concern that a 

relaxed screening requirement for 

clinics would have the ‘‘unintended 

effect of increasing subsidization of 

restricted activity.’’ OIG urged LSC to 

exercise caution to ‘‘ensure that changes 

to the PAI rule do not make it more 

difficult to prevent and detect 

noncompliance with LSC regulations 

and do not increase the risk that LSC 

funds will be used to subsidize, whether 

intentionally or not, restricted activity.’’ 

LSC considered the commenters’ 

views on screening and the burden that 

screening may place on recipients’ 

support for clinics operated solely by 

them or through the joint efforts of 

community organizations. LSC 

considered those views in light of the 

statutory restrictions Congress places on 

the funds appropriated to LSC and on 

recipients of LSC funds. LSC concluded 

that, regardless of whether legal 

assistance is provided directly by a 

recipient or through PAI activities 

individuals must be screened for LSC 

eligibility and legal assistance may be 

provided only to those individuals who 

may be served consistent with the LSC 

Act, the LSC appropriation statutes, and 

the applicable regulations. Nothing in 

NLADA’s comment causes LSC to 

reconsider its decision with respect to 

screening for eligibility in PAI clinics 

that provide legal assistance to 

individuals. 

LSC recognizes that adopting either 

the simplified screening requirement or 

a test that a clinic was targeted at the 

LSC-eligible client population would 

allow recipients to support a broader 

range of clinics at which private 

attorneys provide legal assistance to 

low-income individuals. What neither 

of these mechanisms ensures is that LSC 

recipients are supporting clinics that 

provide services permitted by LSC’s 

authorizing statutes to individuals 

eligible to receive those services. While 

Congress has repeatedly supported 

LSC’s efforts to expand pro bono 

consistent with the recommendations of 

the Pro Bono Task Force, it has couched 

its support in terms of ‘‘increasing the 

involvement of private attorneys in the 

delivery of legal services to their 

clients.’’ S. Rep. 113–78, H.R.Rep. 113– 

171, incorporated by reference by Sec. 4, 

Pub. L. 113–76, 128 Stat. 5, 7 (2014). 

LSC does not believe that its responses 

to the Task Force’s recommendations 

can include expanding the PAI rule to 

allow recipients to participate, directly 

or indirectly, in the provision of legal 

assistance to individuals who are not 

eligible to receive legal assistance from 

an LSC recipient. 

Comment 5: OIG commented that it 

had ‘‘observed some ambiguity in the 

discussion of PAI support for clinics 

that provide individualized legal 

assistance. The transcripts of meetings 

preceding publication of the NPRM 

appear to contain the suggestion that 

grantees will be able to count their 

direct participation in PAI clinics 

toward their PAI requirement.’’ OIG 

urged LSC to clarify that costs incurred 

by a recipient in supporting a PAI clinic 

count toward the PAI requirement, 

while costs associated with clinics at 

which recipient attorneys themselves 

provide the legal information or legal 

assistance cannot be allocated to the PAI 

requirement. 

Response: LSC understands OIG’s 

concern and believes their comment is 

addressed by the definition of PAI 

clinic. In the NPRM, LSC defined PAI 

clinic as ‘‘an activity under this part in 

which private attorneys, law students, 

law graduates, or other professionals are 

involved in providing legal information 

and/or legal assistance to the public at 

a specified time and location.’’ 79 FR 

21188, 21199, Apr. 15, 2014 (emphasis 

added). LSC clearly stated its intent 

regarding the application of 

§ 1614.4(b)(4) in the preamble to the 

NPRM: 

This new regulatory provision will allow 

recipients to allocate costs associated with 

support to clinics to the PAI requirement. 

The new provisions of part 1614 will govern 

only those clinics in which a recipient plays 

a supporting role. Recipients will remain 

responsible for complying with the screening 

and CSR case-handling requirements for 

those clinics at which recipient attorneys 

provide legal assistance to individuals. 

79 FR 21188, 21193. 

Comment 6: OIG also commented on 

LSC’s proposal to promulgate clear 

standards for when a PAI clinic must 

screen for eligibility. OIG first noted that 

proposed § 1614.4(b)(4) ‘‘describes in 

some detail eligibility constraints on 

three different types of PAI clinics: 

clinics that exclusively provide legal 

information not tailored to particular 

clients; clinics that exclusively provide 

individualized legal advice, and clinics 

that do both.’’ OIG also cited the 

observation made by a member of the 

Board of Directors at the April Board 

meeting that ‘‘without a change in 

meaning, one could remove the 

proposed eligibility constraints in 

Section 1614.4(b)(4) and substitute 

language pointing to generally 

applicable standards governing the use 

of LSC funds as the operative constraint 

on PAI activities, thereby reducing the 

complexity [of] the proposed rule.’’ OIG 

stated its understanding that proposed 

§ 1614.4(b)(4) merely explicated ‘‘the 

straightforward implications of general 

eligibility requirements found in LSC’s 

regulations and governing statutes,’’ and 

recommended that if LSC intended to 

establish new eligibility requirements, 

LSC should clarify that intent before 

adopting a final rule. Finally, OIG 

recommended that LSC either 

significantly simplify § 1614.4(b)(4) to 

plainly state the ‘‘generally applicable 

eligibility requirements’’ or, if retaining 

the language proposed in the NPRM, 

including language ‘‘to the effect that 

notwithstanding any other provision or 

subsection of the rule, a grantee may 

only count toward its PAI requirement 

funds spent in support of activities that 

the grantee would itself be able to 

undertake with LSC funds.’’ 

Response: LSC agrees with OIG that it 

should be clear that the rule is not 

establishing new or additional eligibility 

requirements or screening requirements. 

LSC believes that the specificity of the 


wreier-aviles on DSK5TPTVN1PROD with RULES
61778 Federal Register / Vol. 79, No. 199 / Wednesday, October 15, 2014 / Rules and Regulations 

definition of the term screen for 

eligibility makes clear that individuals 

being served through PAI clinics must 

be LSC-eligible. The definition does not 

establish new or additional screening 

requirements for individuals being 

served by private attorneys through PAI 

projects. 

LSC understands that part 1614 states 

its position on when individuals must 

be screened for eligibility more clearly 

than LSC has done in any prior 

issuance, and that the issue of eligibility 

to receive legal assistance from an LSC 

recipient is not unique to the PAI 

context. However, as discussed in the 

response to the comment above 

regarding screening, LSC believed that a 

clear statement in the PAI rule about its 

requirements for eligibility screening 

was necessary. LSC reiterates now that 

the screening requirements contained in 

§ 1614.4(b)(4) do not create new 

standards for determining the eligibility 

of individuals receiving legal assistance 

through a PAI clinic. 

§ 1614.4(b)(5) Screening and referral 

systems. Section 1614.4(b)(5) 

established the rules governing intake 

and referral systems. This addition to 

the rule adopted Recommendation 2(b) 

by expanding the situations in which 

recipients may allocate costs associated 

with intake and referral to private 

attorneys to their PAI requirement. 

Section 1614.4(b)(5) reflects the 

Corporation’s decision to relieve 

recipients of the obligation to accept 

referred clients as part of their caseload 

and to determine the ultimate resolution 

of the clients’ cases by considering 

intake and referral activities other 

activities. Cases screened and referred 

through these systems do not need to be 

accepted by the recipient as CSR cases 

and tracked in order for recipients to 

allocate costs associated with the system 

to the PAI requirement. LSC received no 

comments on this section. 

§ 1614.4(b)(6) Law student activities. 

Section 1614.4(b)(6) established the 

rules for allocating costs associated with 

the work provided by law students to 

the PAI requirement. LSC received no 

comments on this section. 

§ 1614.4(c) Determination of PAI 

activities. Section 1614.4(c) adopted 

existing § 1614.3(c) in its entirety. LSC 

proposed to revise the phrase ‘‘involve 

private attorneys in the provision of 

legal assistance to eligible clients’’ to 

include law students, law graduates, or 

other professionals. LSC proposed this 

change to reflect the rule’s inclusion of 

the other categories of individuals that 

recipients may engage in PAI activities. 

LSC received no comments on this 

section. 

§ 1614.4(d) Unauthorized practice of 

law. Section 1614.4(d) made clear that 

the rule is not intended to permit any 

activities that would conflict with the 

rules governing the unauthorized 

practice of law in the jurisdiction in 

which a recipient is located. LSC 

received no comments on this section. 

Proposed § 1614.5 Compensation of 

recipient staff and private attorneys; 

blackout period. In the NPRM, LSC 

proposed to introduce a new § 1614.5 

establishing rules for the treatment of 

compensation paid to private attorneys, 

law students, law graduates, or other 

professionals under the PAI rules. 

§ 1614.5(a). Section 1614.5(a) stated 

that recipients may allocate to the PAI 

requirement costs for the compensation 

of staff for facilitating the involvement 

of private attorneys, law students, law 

graduates, or other professionals in the 

provision of legal information and legal 

assistance to eligible clients under this 

part. This section was intended to make 

clear that recipients may not allocate 

costs associated with compensation, 

such as salaries or stipends, paid to 

individuals employed by the recipient 

who are providing legal information or 

legal assistance to eligible clients as part 

of their employment. LSC received no 

comments on this section. 

LSC will make one technical edit to 

this section in the final rule. LSC will 

add ‘‘or employees of subrecipients’’ to 

make clear that compensation paid to 

employees of subrecipients, as defined 

in § 1614.3(k), may only be allocated to 

the PAI requirement if the 

compensation was incurred to facilitate 

PAI activities. 

§ 1614.5(b). Section 1614.5(b) 

established limits on the amount of 

compensation paid to a private attorney, 

law graduate, or other professional that 

a recipient may allocate to its PAI 

requirement. LSC proposed to limit the 

amount of compensation to the amount 

paid for up to 800 hours of service 

during a calendar year. The reason for 

this limitation was that compensation at 

a higher level is inconsistent with the 

goal of the PAI rule to engage private 

attorneys in the work of its recipients. 

LSC received no comments on this 

section. 

§ 1614.5(c). Section 1614.5(c) adopted 

a revised version of existing § 1614.1(e), 

which prohibits recipients from 

allocating to the PAI requirement PAI 

fees paid to a former staff attorney for 

two years after the attorney’s 

employment has ended, except for 

judicare or similar fees available to all 

participating attorneys. LSC proposed to 

remove as obsolete the references to the 

effective date of the regulation and 

contracts made prior to fiscal year 1986. 

LSC also proposed to change the time 

period of the rule’s coverage from 

attorneys employed as staff attorneys for 

any portion of the previous two years to 

any individual employed by the 

recipient for any portion of the current 

year and the previous year for more than 

1,000 hours per calendar year, except 

for individuals employed as law 

students. LSC proposed the latter 

change to account for the expansion of 

the rule to allow recipients to engage 

individuals other than private attorneys 

in activities under this part. In 

recognition of the fact that law students 

are primarily engaged in educational 

endeavors, even while working at a 

recipient, LSC proposed to exclude law 

students from the scope of this 

provision. Finally, the rule exempted 

from this restriction compensation paid 

to attorneys who had been employed at 

a recipient or subrecipient while 

participating in incubator projects. LSC 

received no comments on this section 

during the public comment period. 

LSC will make two technical changes 

to § 1614.5 in response to internal 

comments. First, LSC will replace the 

term ‘‘PAI funds’’ with references to 

allocation of costs to the PAI 

requirement. ‘‘PAI funds’’ was language 

carried over from existing § 1614.1(e), 

but as LSC staff pointed out, part 1614 

is a cost allocation regulation, rather 

than authority for the expenditure of 

funds for a specified purpose. 

Consequently, the language of § 1614.5 

has been revised to reflect more 

accurately the nature of the activity 

covered by the regulation. 

The second technical change is 

related to the first. With the move away 

from using the term ‘‘PAI funds,’’ the 

language of proposed § 1614.5(c)(2) 

became difficult to understand. LSC will 

simplify paragraph (c)(2) by replacing 

‘‘PAI funds’’ with ‘‘allocation of costs to 

the PAI requirement’’ and relocating the 

description of an incubator project to 

§ 1614.3(b) as the definition of the term 

incubator project. 

In response to the final rule presented 

to the Committee in advance of its 

October 5, 2014 meeting, NJP 

commented that the prohibition on 

payments to an ‘‘individual who for any 

portion of the current or previous year 

has been employed more than 1,000 

hours per calendar year by an LSC 

recipient or subrecipient’’ was 

confusing. NJP stated that the 

prohibition seemed to conflict with 

§ 1614.5(a), which permits recipients to 

allocate costs to the PAI requirement 

associated with compensation paid to 

employees for facilitating the 

involvement of private attorneys, law 

students, law graduates, and other 


wreier-aviles on DSK5TPTVN1PROD with RULES
Federal Register / Vol. 79, No. 199 / Wednesday, October 15, 2014 / Rules and Regulations 61779 

professionals in PAI activities. In order 

to make clear that the blackout period 

described in paragraph (c) applies to 

individuals who are no longer employed 

by the recipient, LSC proposed revising 

the language to state ‘‘No costs may be 

allocated to the PAI requirement for 

direct payment to any individual who 

for any portion of the current year or the 

previous year was employed more than 

1,000 hours per calendar year by an LSC 

recipient or subrecipient . . . .’’ 

LSC staff brought NJP’s concern and 

the language LSC proposed above to 

address the concern to the Board’s 

attention. The Board accepted the 

change, which is now contained in the 

final rule. 

Proposed § 1614.6 Procedure. LSC 

moved the text of existing § 1614.4, 

regarding the procedure recipients must 

use to establish their PAI plans, to 

§ 1614.6. LSC proposed to include law 

students, law graduates, or other 

professionals as individuals that 

recipients may consider engaging in 

activities under this part during the 

development of their PAI plans. 

However, LSC did not revise proposed 

§ 1614.6(b) to require recipients to 

consult with local associations for other 

professionals. LSC believed that 

recipients are in the best position to 

know which other professionals they 

may attempt to engage in their PAI 

programs, and encourages recipients to 

determine which professional 

associations they may want to consult in 

developing their PAI plans. In the 

interest of simplifying and improving 

the logic of the rule, LSC also proposed 

to relocate existing § 1614.2(b), 

regarding joint PAI efforts by recipients 

with adjacent, coterminous, or 

overlapping service areas, to § 1614.6(c) 

without substantive changes. LSC 

received no comments on this section. 

Proposed § 1614.7 Compliance. 

Comment: NJP commented on the 

omission of current § 1614.3(e)(4) from 

the NPRM. Existing § 1614.3(e)(4) states 

that recipients must make available to 

LSC auditors and monitors ‘‘all records 

pertaining to a recipient’s PAI 

requirements which do not contain 

client confidences or secrets as defined 

by applicable state law.’’ NJP expressed 

concern that the omission of 

§ 1614.3(e)(4) ‘‘seems to extend the 

proposed changes in 2015 Grant 

Assurances Nos. 10 and 11 (to which 

NJP strongly objects) to private attorneys 

providing services under a PAI contract. 

. . . Compelling a private attorney to 

disclose client information in 

contravention of applicable Washington 

law and Rules of Professional Conduct, 

creates a significant disincentive to 

participation in a compensated PAI 

program through NJP.’’ NJP urged LSC 

to reinstate the language of existing 

§ 1614.3(e)(4). 

Response: LSC understands NJP’s 

concern, but will not reinstate the 

language of current § 1614.3(e)(4). LSC 

notes that it rescinded the proposed 

changes to Grant Assurances 10 and 11 

in response to comments made by NJP, 

discussed above, and others regarding 

the potential adverse effect of the 

proposed changes. 

LSC intentionally omitted this section 

in the NPRM as the result of internal 

discussions with OIG. OIG and LSC 

came to the conclusion that existing 

§ 1614.3(e)(4) was unnecessary because 

it did not establish recordkeeping or 

disclosure requirements beyond those 

stated in LSC’s governing statutes and 

regulations. LSC has not included 

similar disclosure provisions in any of 

its other regulations. Instead, LSC has 

chosen to prescribe its access to records 

through the grant assurances that 

recipients must accept each year. 

Records pertaining to a recipient’s PAI 

activities are not subject to different 

recordkeeping or access requirements 

than records pertaining to its in-house 

activities. LSC believes that its 

governing statutes, regulations, and 

grant assurances adequately describe the 

circumstances under which recipients 

must provide LSC access to records 

pertaining to their PAI requirements and 

the kinds of information that may be 

withheld. There is no need to include a 

provision explaining that access in part 

1614. 

LSC will make one technical change 

to the title of § 1614.7. LSC staff 

believed that the title ‘‘Compliance’’ 

was misleading because § 1614.7 

governs only fiscal recordkeeping, 

rather than recordkeeping about all 

aspects of a recipient’s operations, 

including compliance with parts 1626 

(eligibility of citizens and certain noncitizens), 1620 (determination of 

priorities), and 1611 (financial 

eligibility). We agree with this 

comment, and will retitle § 1614.7 

‘‘Fiscal recordkeeping.’’ Programmatic 

recordkeeping requirements specific to 

the activities described in § 1614.4 are 

contained in the paragraphs to which 

they apply. 

Proposed § 1614.8 Prohibition of 

revolving litigation funds. In the NPRM, 

LSC proposed to move existing § 1614.5, 

prohibiting the use of revolving 

litigation funds to meet the PAI 

requirement, to new § 1614.8. The only 

proposed substantive change to this 

section was the inclusion of law 

students, law graduates, or other 

professionals. LSC received no 

comments on this section. 

Proposed § 1614.9 Waivers. LSC 

proposed to move existing § 1614.6, 

governing the procedures by which 

recipients may seek full or partial 

waivers of the PAI requirement, to new 

§ 1614.9 without substantive change. 

LSC proposed to make technical 

amendments by replacing the references 

to the Office of Field Services (OFS) and 

the Audit Division of OFS, which no 

longer exist, with references to LSC. 

LSC received no comments on this 

section. 

Proposed § 1614.10 Failure to comply. 

In the NPRM, LSC proposed to move 

existing § 1614.7, which established 

sanctions for a recipient’s failure to 

comply with the PAI requirement or 

seek a waiver of the requirement, to new 

§ 1614.10. 

§ 1614.10(a). Comment: NLADA 

expressed concern that withholding of 

funds under § 1614.10(a) would not be 

considered an enforcement action under 

45 CFR parts 1606, 1618, 1623, or 1630. 

Section 1614.10(a) authorizes the 

Corporation to withhold funds if a 

recipient fails to meet the PAI 

requirement for a given year and fails 

without good cause to seek a waiver of 

the PAI requirement. NLADA wanted to 

‘‘ensure that, although actions under 

1614 are not to be construed as actions 

under the other regulatory sections 

referenced above, LSC will follow 

normal procedures of due process, 

including allowing recipients the ability 

to appeal a decision to withhold funds 

to LSC’s President.’’ 

Response: In light of NLADA’s 

comment, LSC will establish a process 

for considering whether a recipient has 

failed without cause to seek a waiver of 

the PAI requirement, notifying the 

recipient of LSC’s determination, and 

providing for review of an initial 

adverse decision. LSC believes that the 

opportunity for review by the President 

of the Corporation is appropriate when 

a recipient’s failure to comply with a 

requirement may result in the loss of 

funds. LSC will use a process modeled 

substantially on the process described at 

45 CFR 1630.7 because the withholding 

of funds for failure to comply with a 

requirement is most akin to a 

disallowance of questioned costs. 

In considering NLADA’s comment, 

LSC researched the regulatory history of 

existing § 1614.7(a). When it enacted 

existing § 1614.7(a) in 1986, LSC 

received comments from the field that 

the provision placed too much 

discretion with the staff to determine 

whether recipients were in compliance 

with the PAI requirement or had failed 

without good cause to seek a waiver. 50 

FR 48586, 48590, Nov. 26, 1986. In 

response, LSC clarified that the Board 


wreier-aviles on DSK5TPTVN1PROD with RULES
61780 Federal Register / Vol. 79, No. 199 / Wednesday, October 15, 2014 / Rules and Regulations 

‘‘intends for this section to minimize 

staff discretion. The only determination 

left to staff under § 1614.7 is whether or 

not a recipient has failed without good 

cause, to seek a waiver during the term 

of the grant.’’ 50 FR 48586, 48590–91. 

The Board did not address whether a 

recipient had any recourse in the event 

that staff determined that the recipient 

failed without good cause to seek a 

waiver. 

LSC will add § 1614.10(a)(2), which 

states that the Corporation will inform 

the recipient in writing of its decision 

about whether the recipient failed 

without good cause to seek a waiver. 

LSC will also add § 1614.10(a)(3), which 

states that appeals under this section 

will follow the process set forth at 45 

CFR 1630.7(c)–(g). Finally, LSC will add 

two provisions that limit the 

applicability of the process described to 

actions under part 1614. Consistent with 

the Board’s intentions, as stated in the 

preamble to the 1986 final rule, 

paragraph (a)(3)(i) will limit the subject 

matter of the appeal to the Corporation’s 

determination that the recipient failed 

without good cause to seek a waiver. 

Paragraph (a)(3)(ii) will limit the 

method by which the Corporation may 

recover funds to withholding, consistent 

with the existing rule. 

§ 1614.10(b). This section carried over 

from existing § 1614.7(b), and states that 

recipients who fail with good cause to 

seek a waiver, or who apply for but fail 

to receive a waiver, or who receive a 

partial waiver but do not expend the 

amount required will have their PAI 

requirement increased for the following 

year. The requirement will be increased 

by an amount equal to the difference 

between the amount actually expended 

and the amount required to be 

expended. LSC received no comments 

on this section. 

§ 1614.10(c). Comment: The ABA 

commented on LSC’s proposal to revise 

this section to allow LSC to reallocate 

funds withheld under § 1614.10(a) for 

any basic field purpose. The ABA 

agreed with LSC’s proposal to allow it 

to compete the withheld funds outside 

of a recipient’s service area if the 

recipient from whom the funds were 

withheld is the only applicant for the 

funds. However, the ABA opposed the 

proposal to make funds withheld for 

failure to meet the PAI requirement 

available for basic field grant purposes 

because it believed the proposal was 

contrary to the purposes of the PAI 

regulation. According to the ABA, ‘‘[i]f 

the consequence of failing to use funds 

for PAI is that the funds become 

available for basic field services, this 

provides a disincentive to comply with 

the PAI requirement.’’ Instead, the ABA 

recommended that LSC revise the rule 

to allow funds withheld under 

§ 1614.10(a) to be competed for PAI 

purposes in another service area if the 

program from which the funds were 

withheld is the ‘‘only LSC recipient 

applying for the funds in the 

competitive grant process.’’ 

Response: LSC concurs with the 

ABA’s comment and will revise 

§ 1614.10(c) accordingly. 

LSC will make two changes to this 

section in the final rule. First, LSC will 

include language stating that when the 

Corporation has withheld funds from a 

recipient and such funds are available 

for competition, LSC shall provide 

public notice setting forth the details of 

the application process. LSC’s notice 

will include the time, format, and 

content of the application, as well as the 

procedures for submitting an 

application for the withheld funds. 

Second, LSC will add a new paragraph 

(c)(2) regarding the relationship of an 

award of funds withheld under 

§ 1614.10(a) to a recipient’s annual 

twelve and one-half percent (12.5%) 

PAI requirement. An award of funds 

pursuant to § 1614.10(c)(1) is an 

additional amount of funding to engage 

in PAI activities beyond a recipient’s 

annual PAI requirement. In other words, 

LSC intends a § 1614.10(c)(1) award to 

expand a recipient’s PAI activities, 

rather than to supplement the amount 

available to meet the recipient’s annual 

twelve and one-half percent (12.5%) 

requirement. An award under 

§ 1614.10(c)(1) will not increase the 

amount of the recipient’s PAI 

requirement by the same amount in 

subsequent grant years. It is intended as 

a one-time award that has no future 

effect on a recipient’s PAI requirement. 

During the October 5, 2014 Committee 

meeting, the Committee noted that the 

phrase ‘‘in another service area’’ in the 

last sentence of paragraph (c)(1) 

appeared to limit LSC’s options for 

competing withheld funds in the event 

the recipient from whom they were 

withheld was the only applicant for the 

funds. In other words, it seemed to 

preclude the Corporation from holding 

a competition in which the recipient’s 

application would be considered along 

with applications from other LSC 

recipients in other service areas. LSC 

did not intend to limit competition in 

that manner. LSC adopted the 

Committee’s proposed language—‘‘in 

additional service areas’’—in the last 

sentence of paragraph (c)(1) to reflect 

more accurately LSC’s intention to 

allow expanded competition. The 

version of the rule approved by the 

Board contained the revised language. 

§ 1614.10(d). LSC proposed to revise 

§ 1614.10(d) to be consistent with the 

changes to the enforcement rules, 78 FR 

10085, Feb. 13, 2013. LSC received no 

comments on this section. 

Other Comments 

LSC received three comments that did 

not pertain to particular sections of the 

proposed rule. NJP submitted one 

comment recommending that LSC raise 

the dollar threshold at which recipients 

must seek approval to make payments to 

private attorneys in excess of $25,000. 

The rule governing subgrants, 45 CFR 

part 1627, requires recipients to obtain 

approval before making payments in 

excess of $25,000 to a third party to 

provide services ‘‘that are covered by a 

fee-for-service arrangement, such as 

those provided by a private law firm or 

attorney representing a recipient’s 

clients on a contract or judicare basis[.]’’ 

45 CFR 1627.2(b)(1). NJP noted that the 

$25,000 limit has not changed since its 

enactment in 1983. They recommended 

that LSC increase the threshold to 

$60,000, which is the approximate 

amount that $25,000 in 1983 represents 

today. 

The proposed change is outside the 

scope of this rulemaking, which is 

focused on changes to part 1614. 

Consequently, LSC will not revise part 

1627 at this time. However, LSC has 

placed a priority on resuming the 

rulemaking initiated in 2011 to revise 

the subgrant rule in part 1627 and the 

transfer rule at 45 CFR § 1610.7 as part 

of the 2014–2015 rulemaking agenda. 

LSC will consider NJP’s 

recommendation as part of that 

rulemaking. 

OIG made two general comments 

regarding the rule. OIG first 

recommended that LSC retitle part 1614 

to reflect the expansion of the rule to 

include services provided by 

individuals other than private attorneys. 

OIG recommended this change in part to 

avoid ‘‘giving LSC’s appropriators, 

oversight authorities, or outside 

observers the misimpression that all 

funding directed to what is now called 

private attorney involvement is devoted 

to securing the services of private 

attorneys.’’ OIG suggested ‘‘Volunteer 

and Reduced Fee Services’’ or ‘‘Private 

Provider Services’’ as alternate titles. 

OIG’s second comment reiterated 

their belief that LSC should include 

reporting requirements in the rule. OIG 

recommended that the rule require 

recipients to provide information that 

would allow LSC to analyze the impact 

that the changes to the PAI rule have on 

services provided by private attorneys. 

OIG expressed its concern that ‘‘if the 

PAI rule is revised to make PAI funds 


wreier-aviles on DSK5TPTVN1PROD with RULES
Federal Register / Vol. 79, No. 199 / Wednesday, October 15, 2014 / Rules and Regulations 61781 

available to activities other than the 

involvement of private attorneys, the 

legal services community may end up 

with fewer private attorneys involved in 

the provision of legal assistance to 

eligible clients.’’ In OIG’s view, it is 

essential that the new rule have 

mechanisms in place to measure the 

‘‘performance of the revised PAI rule 

from its inception. . . . These 

measuring mechanisms should, in the 

OIG’s view, consist largely of reporting 

requirements that, at a minimum, break 

out the number of private attorneys (as 

distinguished from other service 

providers) involved in the program and 

the magnitude of their services.’’ OIG 

concluded by opining that such 

reporting ‘‘would minimize the 

opportunity for confusion on the part of 

LSC’s appropriators, oversight 

authorities, or outside observers 

concerning the extent to which PAI 

funds are directed toward pro bono 

services of attorneys.’’ 

Regarding OIG’s first comment, LSC 

has determined that it will not change 

the title of part 1614. Part 1614 has been 

known as ‘‘Private Attorney 

Involvement’’ since 1986; recipients and 

stakeholders thus regularly use the term 

‘‘PAI.’’ Moreover, because engaging 

private attorneys in the delivery of legal 

information and legal assistance to 

eligible clients remains the primary 

vehicle for carrying out the purpose of 

the rule, LSC does not believe a change 

is necessary. 

With respect to the second comment, 

LSC agrees with the OIG regarding the 

importance of reporting requirements, 

but will not specify reporting 

requirements in the final rule. During 

the March 3, 2014 Committee meeting, 

LSC stated that it would not prescribe, 

through the rule, the types of 

information that recipients must keep 

about services and whether the services 

were provided by private attorneys or 

others. LSC informed the Committee of 

two factors relevant to this decision. 

First, LSC is in the midst of a project 

with the Public Welfare Foundation to 

improve the Corporation’s data 

collection methods and measures. As 

part of this work, recipients have 

advised LSC about the types of data they 

provide to LSC and to other funders, 

and what types of data collection they 

find useful. Second, LSC typically 

informs recipients about the data that it 

wants them to provide through 

guidance, such as the annual grant 

assurances that recipients must accept 

at the beginning of each grant year. 

Particularly in light of its ongoing work 

with the Public Welfare Foundation, 

LSC believes the optimal approach is to 

prescribe data collection through policy 

documents so that LSC has the 

flexibility to adjust the data collection 

requirements in consultation with 

recipients and in a timely fashion. 

Promulgating specific data collection 

requirements in the regulation binds 

LSC and recipients to those 

requirements until the regulation can be 

amended, which is time-consuming and 

may delay desired changes. LSC agrees 

with the OIG regarding the importance 

of data LSC seeks from recipients, and 

intends to solicit OIG’s input as it 

develops additional data collection 

requirements for PAI. 

List of Subjects in 45 CFR Part 1614 

Legal services, Private attorneys, 

Grant programs—law. 

For the reasons stated in the 

preamble, the Legal Services 

Corporation revises 45 CFR part 1614 to 

read as follows: 

PART 1614—PRIVATE ATTORNEY 

INVOLVEMENT 

Sec. 

1614.1 Purpose. 

1614.2 General policy. 

1614.3 Definitions. 

1614.4 Range of activities. 

1614.5 Compensation of recipient staff and 

private attorneys; blackout period. 

1614.6 Procedure. 

1614.7 Fiscal recordkeeping. 

1614.8 Prohibition of revolving litigation 

funds. 

1614.9 Waivers. 

1614.10 Failure to comply. 

Authority: 42 U.S.C. 2996g(e). 

§ 1614.1 Purpose. 

Private attorney involvement shall be 

an integral part of a total local program 

undertaken within the established 

priorities of that program, and 

consistent with LSC’s governing statutes 

and regulations, in a manner that 

furthers the statutory requirement of 

providing high quality, economical, and 

effective client-centered legal assistance 

and legal information to eligible clients. 

This part is designed to ensure that 

recipients of LSC funds involve private 

attorneys, and encourages recipients to 

involve law students, law graduates, or 

other professionals, in the delivery of 

legal information and legal assistance to 

eligible clients. 

§ 1614.2 General policy. 

(a) A recipient of LSC funding shall 

devote an amount equal to at least 

twelve and one-half percent (12.5%) of 

the recipient’s annualized Basic FieldGeneral award to the involvement of 

private attorneys, law students, law 

graduates, or other professionals in the 

delivery of legal information and legal 

assistance to eligible clients. This 

requirement is hereinafter referred to as 

the ‘‘PAI requirement.’’ 

(b) Basic Field-Native American 

grants, Basic Field-Migrant grants, and 

non-Basic Field grants are not subject to 

the PAI requirement. For example, 

Technology Initiative Grants are not 

subject to the PAI requirement. 

However, recipients of Native American 

or migrant funding shall provide 

opportunity for involvement in the 

delivery of legal information and legal 

assistance by private attorneys, law 

students, law graduates, or other 

professionals in a manner that is 

generally open to broad participation in 

those activities undertaken with those 

funds, or shall demonstrate to the 

satisfaction of the Corporation that such 

involvement is not feasible. 

§ 1614.3 Definitions. 

(a) Attorney means a person who is 

authorized to practice law in the 

jurisdiction in which assistance is 

rendered. For purposes of this part, 

attorney does not have the meaning 

stated in 45 CFR 1600.1. 

(b) Incubator project means a program 

that provides legal training and support, 

for a limited period of time, to law 

students, law graduates, or attorneys 

who are establishing, or upon 

graduation and bar admission intend to 

establish, their own independent law 

practices. 

(c) Law graduate means an individual 

who, within the last two years, has 

completed the education and/or training 

requirements necessary for application 

to the bar in any U.S. state or territory. 

(d) Law student means an individual 

who is, or has been, enrolled, full-time 

or part-time, within the past year, and 

not expelled from: 

(1) A law school that can provide the 

student with a degree that is a 

qualification for application to the bar 

in any U.S. state or territory; or 

(2) An apprenticeship program that 

can provide the student with sufficient 

qualifications for application to the bar 

in any U.S. state or territory. 

(e) Legal assistance means service on 

behalf of a client or clients that is 

specific to the client’s or clients’ unique 

circumstances, involves a legal analysis 

that is tailored to the client’s or clients’ 

factual situation, and involves applying 

legal judgment in interpreting the 

particular facts and in applying relevant 

law to the facts presented. 

(f) Legal information means 

substantive legal information not 

tailored to address a person’s specific 

problem and that does not involve 

applying legal judgment or 


wreier-aviles on DSK5TPTVN1PROD with RULES
61782 Federal Register / Vol. 79, No. 199 / Wednesday, October 15, 2014 / Rules and Regulations 

recommending a specific course of 

action. 

(g) Other professional means an 

individual, not engaged in the practice 

of law and not employed by the 

recipient, providing services in 

furtherance of the recipient’s provision 

of legal information or legal assistance 

to eligible clients. For example, a 

paralegal representing a client in a 

Supplemental Security Income (SSI) 

case, an accountant providing tax advice 

to an eligible client, or an attorney not 

authorized to practice law in the 

jurisdiction in which the recipient is 

located would fit within the definition 

of other professional. An individual 

granted a limited license to practice law 

by a body authorized by court rule or 

state law to grant such licenses in the 

jurisdiction in which the recipient is 

located would also meet the definition 

of other professional. 

(h) PAI Clinic means an activity under 

this part in which private attorneys, law 

students, law graduates, or other 

professionals are involved in providing 

legal information and/or legal assistance 

to the public at a specified time and 

location. 

(i) Private attorney means an attorney. 

Private attorney does not include: 

(1) An attorney employed half time or 

more per calendar year by an LSC 

recipient or subrecipient; or 

(2) An attorney employed less than 

half time by an LSC recipient or 

subrecipient acting within the terms of 

his or her employment by the LSC 

recipient or subrecipient; or 

(3) An attorney acting within the 

terms of his or her employment by a 

non-profit organization whose primary 

purpose is the delivery of free civil legal 

services to low-income individuals; or 

(4) An attorney acting within the 

terms of his or her employment by a 

component of a non-profit organization, 

where the component’s primary purpose 

is the delivery of free civil legal services 

to low-income individuals. 

(j) Screen for eligibility means to 

screen individuals for eligibility using 

the same criteria recipients use to 

determine an individual’s eligibility for 

cases accepted by the recipient and 

whether LSC funds or non-LSC funds 

can be used to provide legal assistance 

(e.g., income and assets, citizenship, 

eligible alien status, within priorities, 

applicability of LSC restrictions). 

(k) Subrecipient has the meaning 

stated in 45 CFR 1627.2(b)(1), except 

that as used in this part, such term shall 

not include entities that meet the 

definition of subrecipient solely because 

they receive more than $25,000 from an 

LSC recipient for services provided 

through a fee-for-service arrangement, 

such as services provided by a private 

law firm or attorney representing a 

recipient’s clients on a contract or 

judicare basis. 

§ 1614.4 Range of activities. 

(a) Direct delivery of legal assistance 

to recipient clients. (1) Activities 

undertaken by the recipient to meet the 

requirements of this part must include 

the direct delivery of legal assistance to 

eligible clients by private attorneys 

through programs such as organized pro 

bono plans, reduced fee plans, judicare 

panels, private attorney contracts, or 

those modified pro bono plans which 

provide for the payment of nominal fees 

by eligible clients and/or organized 

referral systems; except that payment of 

attorney’s fees through ‘‘revolving 

litigation fund’’ systems, as described in 

§ 1614.8, shall neither be used nor 

funded under this part nor funded with 

any LSC support. 

(2) In addition to the activities 

described in paragraph (a)(1) of this 

section, direct delivery of legal 

assistance to eligible clients may 

include representation by a nonattorney in an administrative tribunal 

that permits non-attorneys to represent 

individuals before the tribunal. 

(3) Systems designed to provide direct 

legal assistance to eligible clients of the 

recipient by private attorneys on either 

a pro bono or reduced fee basis, shall 

include at a minimum, the following 

components: 

(i) Intake and case acceptance 

procedures consistent with the 

recipient’s established priorities in 

meeting the legal needs of eligible 

clients; 

(ii) Case assignments which ensure 

the referral of cases according to the 

nature of the legal problems involved 

and the skills, expertise, and substantive 

experience of the participating attorney; 

(iii) Case oversight and follow-up 

procedures to ensure the timely 

disposition of cases to achieve, if 

possible, the result desired by the client 

and the efficient and economical 

utilization of recipient resources; and 

(iv) Access by private attorneys to 

LSC recipient resources that provide 

back-up on substantive and procedural 

issues of the law. 

(b) Support and other activities. 

Activities undertaken by recipients to 

meet the requirements of this part may 

also include, but are not limited to: 

(1) Support provided by private 

attorneys to the recipient or a 

subrecipient as part of its delivery of 

legal assistance or legal information to 

eligible clients on either a reduced fee 

or pro bono basis such as the provision 

of community legal education, training, 

technical assistance, research, advice 

and counsel; co-counseling 

arrangements; or the use of the private 

attorney’s facilities, libraries, computerassisted legal research systems or other 

resources; 

(2) Support provided by other 

professionals in their areas of 

professional expertise to the recipient as 

part of its delivery of legal information 

or legal assistance to eligible clients on 

either a reduced fee or pro bono basis 

such as the provision of intake support, 

research, training, technical assistance, 

or direct assistance to an eligible client 

of the recipient; and 

(3) Support provided by the recipient 

in furtherance of activities undertaken 

pursuant to this section including the 

provision of training, technical 

assistance, research, advice and counsel 

or the use of recipient facilities, 

libraries, computer assisted legal 

research systems or other resources. 

(4) Support provided to bar 

associations or courts establishing legal 

clinics. A recipient may allocate to its 

PAI requirement costs associated with 

providing a bar association or court with 

technical assistance in planning and 

establishing a legal clinic at which 

private attorneys will provide legal 

information and/or legal assistance. 

(5) PAI Clinics—(i) Legal information 

provided in PAI clinics. A recipient may 

allocate to its PAI requirement costs 

associated with providing support to 

clinics, regardless of whether the clinic 

screens for eligibility, if the clinic 

provides only legal information. 

(ii) Legal assistance provided in PAI 

clinics. A recipient may provide support 

to a PAI clinic that provides legal 

assistance if the PAI clinic screens for 

eligibility. 

(A) A recipient may allocate to its PAI 

requirement costs associated with its 

support of such clinics for legal 

assistance provided to individuals who 

are eligible to receive LSC-funded legal 

services. 

(B) Where a recipient supports a 

clinic that provides legal assistance to 

individuals who are eligible for 

permissible non-LSC-funded services, 

the recipient may not allocate to its PAI 

requirement costs associated with the 

legal assistance provided to such 

individuals. For example, a recipient 

may not allocate to its PAI requirement 

costs associated with legal assistance 

provided through a clinic to an 

individual who exceeds the income and 

asset tests for LSC eligibility, but is 

otherwise eligible. 

(C) For clinics providing legal 

information to the public and legal 

assistance to clients screened for 

eligibility, a recipient may allocate to its 


wreier-aviles on DSK5TPTVN1PROD with RULES
Federal Register / Vol. 79, No. 199 / Wednesday, October 15, 2014 / Rules and Regulations 61783 

PAI requirement costs associated with 

its support of both parts of the clinic. If 

the clinic does not screen for eligibility, 

the recipient may allocate to the PAI 

requirement costs associated with the 

legal information portion of the PAI 

clinic, but may not allocate to the PAI 

requirement costs associated with the 

legal assistance portion of the clinic. 

(D) In order to allocate to its PAI 

requirement costs associated with 

support of the legal assistance portion of 

a clinic, a recipient must maintain 

records sufficient to document that such 

clinic has an eligibility screening 

process and that each individual 

provided with legal assistance in the 

portion of the clinic supported by the 

recipient was properly screened for 

eligibility under the process. 

(6) Screening and referral systems. (i) 

A recipient may participate in a referral 

system in which the recipient conducts 

intake screening and refers LSC-eligible 

applicants to programs that assign 

applicants to private attorneys on a pro 

bono or reduced fee basis. 

(ii) In order to allocate to its PAI 

requirement costs associated with 

participating in such referral systems, a 

recipient must be able to report the 

number of eligible persons referred by 

the recipient to each program and the 

number of eligible persons who were 

placed with a private attorney through 

the program receiving the referral. 

(7) Law student activities. A recipient 

may allocate to its PAI requirement 

costs associated with law student work 

supporting the recipient’s provision of 

legal information or delivery of legal 

assistance to eligible clients. 

Compensation paid by the recipient to 

law students may not be allocated to the 

PAI requirement. 

(c) Determination of PAI activities. 

The specific methods to be undertaken 

by a recipient to involve private 

attorneys, law students, law graduates, 

or other professionals in the provision 

of legal information and legal assistance 

to eligible clients will be determined by 

the recipient’s taking into account the 

following factors: 

(1) The priorities established pursuant 

to part 1620 of this chapter; 

(2) The effective and economic 

delivery of legal assistance and legal 

information to eligible clients; 

(3) The linguistic and cultural barriers 

to effective advocacy; 

(4) The actual or potential conflicts of 

interest between specific participating 

attorneys, law students, law graduates, 

or other professionals and individual 

eligible clients; and 

(5) The substantive and practical 

expertise, skills, and willingness to 

undertake new or unique areas of the 

law of participating attorneys and other 

professionals. 

(d) Unauthorized practice of law. This 

part is not intended to permit any 

activities that would conflict with the 

rules governing the unauthorized 

practice of law in the recipient’s 

jurisdiction. 

§ 1614.5 Compensation of recipient staff 

and private attorneys; blackout period. 

(a) A recipient may allocate to its PAI 

requirement costs associated with 

compensation paid to its employees 

only for facilitating the involvement of 

private attorneys, law students, law 

graduates, or other professionals in 

activities under this part. 

(b) A recipient may not allocate to its 

PAI requirement costs associated with 

compensation paid to a private attorney, 

law graduate, or other professional for 

services under this part for any hours an 

individual provides above 800 hours per 

calendar year. 

(c) No costs may be allocated to the 

PAI requirement for direct payment to 

any individual who for any portion of 

the current year or the previous year 

was employed more than 1,000 hours 

per calendar year by an LSC recipient or 

subrecipient, except for employment as 

a law student; provided, however: 

(1) This paragraph (c) shall not be 

construed to prohibit the allocation of 

costs to the PAI requirement for 

payments made to such an individual 

participating in a pro bono or judicare 

project on the same terms that are 

available to other attorneys; 

(2) This paragraph (c) shall not apply 

to the allocation of costs to the PAI 

requirement for payments to attorneys 

who were employed for less than a year 

by an LSC recipient or subrecipient as 

part of an incubator project; and 

(3) This paragraph (c) shall not be 

construed to restrict recipients from 

allocating to their PAI requirement the 

payment of funds as a result of work 

performed by an attorney or other 

individual who practices in the same 

business with such former employee. 

§ 1614.6 Procedure. 

(a) The recipient shall develop a plan 

and budget to meet the requirements of 

this part which shall be incorporated as 

a part of the refunding application or 

initial grant application. The budget 

shall be modified as necessary to fulfill 

this part. That plan shall take into 

consideration: 

(1) The legal needs of eligible clients 

in the geographical area served by the 

recipient and the relative importance of 

those needs consistent with the 

priorities established pursuant to 

section 1007(a)(2)(C) of the Legal 

Services Corporation Act (42 U.S.C. 

2996f(a)(2)(C)) and 45 CFR part 1620 

adopted pursuant thereto; 

(2) The delivery mechanisms 

potentially available to provide the 

opportunity for private attorneys, law 

students, law graduates, or other 

professionals to meet the established 

priority legal needs of eligible clients in 

an economical and effective manner; 

and 

(3) The results of the consultation as 

required below. 

(b) The recipient shall consult with 

significant segments of the client 

community, private attorneys, and bar 

associations, including minority and 

women’s bar associations, in the 

recipient’s service area in the 

development of its annual plan to 

provide for the involvement of private 

attorneys, law students, law graduates, 

or other professionals in the provision 

of legal information and legal assistance 

to eligible clients and shall document 

that each year its proposed annual plan 

has been presented to all local bar 

associations within the recipient’s 

service area and shall summarize their 

response. 

(c) In the case of recipients whose 

service areas are adjacent, coterminous, 

or overlapping, the recipients may enter 

into joint efforts to involve private 

attorneys, law students, law graduates, 

or other professionals in the delivery of 

legal information and legal assistance to 

eligible clients, subject to the prior 

approval of LSC. In order to be 

approved, the joint venture plan must 

meet the following conditions: 

(1) The recipients involved in the 

joint venture must plan to expend at 

least twelve and one-half percent 

(12.5%) of the aggregate of their basic 

field awards on PAI. In the case of 

recipients with adjacent service areas, 

twelve and one-half percent (12.5%) of 

each recipient’s grant shall be expended 

to PAI; provided, however, that such 

expenditure is subject to waiver under 

this section; 

(2) Each recipient in the joint venture 

must be a bona fide participant in the 

activities undertaken by the joint 

venture; and 

(3) The joint PAI venture must 

provide an opportunity for involving 

private attorneys, law students, law 

graduates, or other professionals 

throughout the entire joint service 

area(s). 

§ 1614.7 Fiscal recordkeeping. 

The recipient shall demonstrate 

compliance with this part by utilizing 

financial systems and procedures and 

maintaining supporting documentation 

to identify and account separately for 


wreier-aviles on DSK5TPTVN1PROD with RULES
61784 Federal Register / Vol. 79, No. 199 / Wednesday, October 15, 2014 / Rules and Regulations 

costs related to the PAI effort. Such 

systems and records shall meet the 

requirements of the Corporation’s Audit 

Guide for Recipients and Auditors and 

the Accounting Guide for LSC 

Recipients and shall have the following 

characteristics: 

(a) They shall accurately identify and 

account for: 

(1) The recipient’s administrative, 

overhead, staff, and support costs 

related to PAI activities. Non-personnel 

costs shall be allocated on the basis of 

reasonable operating data. All methods 

of allocating common costs shall be 

clearly documented. If any direct or 

indirect time of staff attorneys or 

paralegals is to be allocated as a cost to 

PAI, such costs must be documented by 

time sheets accounting for the time 

those employees have spent on PAI 

activities. The timekeeping requirement 

does not apply to such employees as 

receptionists, secretaries, intake 

personnel or bookkeepers; however, 

personnel cost allocations for nonattorney or non-paralegal staff should be 

based on other reasonable operating 

data which is clearly documented; 

(2) Payments to private attorneys, law 

graduates, or other professionals for 

support or direct client services 

rendered. The recipient shall maintain 

contracts on file that set forth payment 

systems, hourly rates, and maximum 

allowable fees. Bills and/or invoices 

from private attorneys, law graduates, or 

other professionals shall be submitted 

before payments are made. 

Encumbrances shall not be included in 

calculating whether a recipient has met 

the requirement of this part; 

(3) Contractual payments or subgrants 

to individuals or organizations that 

undertake administrative, support, and/ 

or direct services to eligible clients on 

behalf of the recipient consistent with 

the provisions of this part. Contracts or 

subgrants concerning transfer of LSC 

funds for PAI activities shall require 

that such funds be accounted for by the 

recipient in accordance with LSC 

guidelines, including the requirements 

of the Audit Guide for Recipients and 

Auditors and the Accounting Guide for 

LSC Recipients and 45 CFR parts 1610, 

1627 and 1630; 

(4) Other such actual costs as may be 

incurred by the recipient in this regard. 

(b) Support and expenses relating to 

the PAI effort must be reported 

separately in the recipient’s year-end 

audit. This shall be done by establishing 

a separate fund or providing a separate 

schedule in the financial statement to 

account for the entire PAI allocation. 

Recipients are not required to establish 

separate bank accounts to segregate 

funds allocated to PAI. Auditors are 

required to perform sufficient audit tests 

to enable them to render an opinion on 

the recipient’s compliance with the 

requirements of this part. 

(c) Attorneys, law students, law 

graduates, or other professionals may be 

reimbursed for actual costs and 

expenses. 

(d) Fees paid to individuals for 

providing services under this part may 

not exceed 50% of the local prevailing 

market rate for that type of service. 

§ 1614.8 Prohibition of revolving litigation 

funds. 

(a) A revolving litigation fund system 

is a system under which a recipient 

systematically encourages the 

acceptance of fee-generating cases as 

defined in § 1609.2 of this chapter by 

advancing funds to private attorneys, 

law students, law graduates, or other 

professionals to enable them to pay 

costs, expenses, or attorneys’ fees for 

representing clients. 

(b) No funds received from the 

Corporation shall be used to establish or 

maintain revolving litigation fund 

systems. 

(c) The prohibition in paragraph (b) of 

this section does not prevent recipients 

from reimbursing or paying private 

attorneys, law students, law graduates, 

or other professionals for costs and 

expenses, provided: 

(1) The private attorney, law student, 

law graduate, or other professional is 

representing an eligible client in a 

matter in which representation of the 

eligible client by the recipient would be 

allowed under LSC’s governing statutes 

and regulations; and 

(2) The private attorney, law student, 

law graduate, or other professional has 

expended such funds in accordance 

with a schedule previously approved by 

the recipient’s governing body or, prior 

to initiating action in the matter, has 

requested the recipient to advance the 

funds. 

(d) Nothing in this section shall 

prevent a recipient from recovering from 

a private attorney, law student, law 

graduate, or other professional the 

amount advanced for any costs, 

expenses, or fees from an award to the 

attorney for representing an eligible 

client. 

§ 1614.9 Waivers. 

(a) While it is the expectation and 

experience of the Corporation that most 

basic field programs can effectively 

expend their PAI requirement, there are 

some circumstances, temporary or 

permanent, under which the goal of 

economical and effective use of 

Corporation funds will be furthered by 

a partial, or in exceptional 

circumstances, a complete waiver of the 

PAI requirement. 

(b) A complete waiver shall be 

granted by LSC when the recipient 

shows to the satisfaction of LSC that: 

(1) Because of the unavailability of 

qualified private attorneys, law 

students, law graduates, or other 

professionals an attempt to carry out a 

PAI program would be futile; or 

(2) All qualified private attorneys, law 

students, law graduates, or other 

professionals in the program’s service 

area either refuse to participate or have 

conflicts generated by their practice 

which render their participation 

inappropriate. 

(c) A partial waiver shall be granted 

by LSC when the recipient shows to the 

satisfaction of LSC that: 

(1) The population of qualified private 

attorneys, law students, law graduates, 

or other professionals available to 

participate in the program is too small 

to use the full PAI allocation 

economically and effectively; or 

(2) Despite the recipient’s best efforts 

too few qualified private attorneys, law 

students, law graduates, or other 

professionals are willing to participate 

in the program to use the full PAI 

allocation economically and effectively; 

or 

(3) Despite a recipient’s best efforts— 

including, but not limited to, 

communicating its problems expending 

the required amount to LSC and 

requesting and availing itself of 

assistance and/or advice from LSC 

regarding the problem—expenditures 

already made during a program year are 

insufficient to meet the PAI 

requirement, and there is insufficient 

time to make economical and efficient 

expenditures during the remainder of a 

program year, but in this instance, 

unless the shortfall resulted from 

unforeseen and unusual circumstances, 

the recipient shall accompany the 

waiver request with a plan to avoid such 

a shortfall in the future; or 

(4) The recipient uses a fee-for-service 

program whose current encumbrances 

and projected expenditures for the 

current fiscal year would meet the 

requirement, but its actual current 

expenditures do not meet the 

requirement, and could not be increased 

to do so economically and effectively in 

the remainder of the program year, or 

could not be increased to do so in a 

fiscally responsible manner in view of 

outstanding encumbrances; or 

(5) The recipient uses a fee-for-service 

program and its PAI expenditures in the 

prior year exceeded the twelve and onehalf percent (12.5%) requirement but, 

because of variances in the timing of 

work performed by the private attorneys 


wreier-aviles on DSK5TPTVN1PROD with RULES
Federal Register / Vol. 79, No. 199 / Wednesday, October 15, 2014 / Rules and Regulations 61785 

and the consequent billing for that 

work, its PAI expenditures for the 

current year fail to meet the twelve and 

one-half percent (12.5%) requirement; 

or 

(6) If, in the reasonable judgment of 

the recipient’s governing body, it would 

not be economical and efficient for the 

recipient to expend its full twelve and 

one-half percent (12.5%) of Corporation 

funds on PAI activities, provided that 

the recipient has handled and expects to 

continue to handle at least twelve and 

one-half percent (12.5%) of cases 

brought on behalf of eligible clients 

through its PAI program(s). 

(d)(1) A waiver of special accounting 

and bookkeeping requirements of this 

part may be granted by LSC, if the 

recipient shows to the satisfaction of 

LSC that such waiver will advance the 

purpose of this part as expressed in 

§§ 1614.1 and 1614.2. 

(2) As provided in 45 CFR 1627.3(c) 

with respect to subgrants, alternatives to 

Corporation audit requirements or to the 

accounting requirements of this Part 

may be approved for subgrants by LSC; 

such alternatives for PAI subgrants shall 

be approved liberally where necessary 

to foster increased PAI participation. 

(e) Waivers of the PAI expenditure 

requirement may be full or partial, that 

is, the Corporation may waive all or 

some of the required expenditure for a 

fiscal year. 

(1) Applications for waivers of any 

requirement under this Part may be for 

the current or next fiscal year. All such 

applications must be in writing. 

Applications for waivers for the current 

fiscal year must be received by the 

Corporation during the current fiscal 

year. 

(2) At the expiration of a waiver a 

recipient may seek a similar or identical 

waiver. 

(f) All waiver requests shall be 

addressed to LSC. The Corporation shall 

make a written response to each such 

request postmarked not later than thirty 

(30) days after its receipt. If the request 

is denied, the Corporation will provide 

the recipient with an explanation and 

statement of the grounds for denial. If 

the waiver is to be denied because the 

information submitted is insufficient, 

the Corporation will inform the 

recipient as soon as possible, both orally 

and in writing, about what additional 

information is needed. Should the 

Corporation fail to so respond, the 

request shall be deemed to be granted. 

§ 1614.10 Failure to comply. 

(a)(1) If a recipient fails to comply 

with the expenditure required by this 

part and that recipient fails without 

good cause to seek a waiver during the 

term of the grant or contract, the 

Corporation shall withhold from the 

recipient’s grant payments an amount 

equal to the difference between the 

amount expended on PAI and twelve 

and one-half percent (12.5%) of the 

recipient’s basic field award. 

(2) If the Corporation determines that 

a recipient failed without good cause to 

seek a waiver, the Corporation shall give 

the recipient written notice of that 

determination. The written notice shall 

state the determination, the amount to 

be withheld, and the process by which 

the recipient may appeal the 

determination. 

(3) The appeal process will follow the 

procedures for the appeal of disallowed 

costs set forth at 45 CFR 1630.7(c)–(g), 

except that: 

(i) The subject matter of the appeal 

shall be limited to the Corporation’s 

determination that the recipient failed 

without good cause to seek a waiver; 

and 

(ii) Withholding of funds shall be the 

method for the Corporation to recover 

the amount to be withheld. 

(b) If a recipient fails with good cause 

to seek a waiver, or applies for but does 

not receive a waiver, or receives a 

waiver of part of the PAI requirement 

and does not expend the amount 

required to be expended, the PAI 

expenditure requirement for the ensuing 

year shall be increased for that recipient 

by an amount equal to the difference 

between the amount actually expended 

and the amount required to be 

expended. 

(c)(1) Any funds withheld by the 

Corporation pursuant to this section 

shall be made available by the 

Corporation for use in providing legal 

services through PAI programs. When 

such funds are available for 

competition, LSC shall publish notice of 

the requirements concerning time, 

format, and content of the application 

and the procedures for submitting an 

application for such funds. 

Disbursement of these funds for PAI 

activities shall be made through a 

competitive solicitation and awarded on 

the basis of efficiency, quality, 

creativity, and demonstrated 

commitment to PAI service delivery to 

low-income people. Competition for 

these funds may be held in the 

recipient’s service area, or if the 

recipient from which funds are 

withheld is the only LSC recipient 

applying for the funds in the 

competitive solicitation, in additional 

service areas. 

(2) Recipients shall expend funds 

awarded through the competitive 

process in paragraph (c)(1) of this 

section in addition to twelve and onehalf percent (12.5%) of their Basic 

Field-General awards. 

(d) The withholding of funds under 

this section shall not be construed as 

any action under 45 CFR parts 1606, 

1618, 1623, or 1630. 

Dated: October 9, 2014. 

Stefanie K. Davis, 

Assistant General Counsel. 

[FR Doc. 2014–24456 Filed 10–14–14; 8:45 am] 

BILLING CODE P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 12 

[PS Docket Nos. 13–75, 11–60; FCC 13– 

158] 

Improving 9–1–1 Reliability; Reliability 

and Continuity of Communications 

Networks, Including Broadband 

Technologies 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule; announcement of 

effective date. 

SUMMARY: In this document, the 

Commission announces that the Office 

of Management and Budget (OMB) has 

approved, for a period of three years, an 

information collection associated with 

the Commission’s Report and Order, 

FCC 13–158, published at 79 FR 3123 

on January 17, 2014, and at 79 FR 7589 

on February 10, 2014. This notice is 

consistent with the Report and Order, 

which stated that the Commission 

would publish a document in the 

Federal Register announcing OMB 

approval and the effective date of 

requirements subject to OMB approval. 

Specifically, this document announces 

the effective date of initial and annual 

reliability certification requirements for 

covered 911 service providers, 

including any associated record 

retention requirements. 

DATES: 47 CFR 12.4(c), 12.4(d)(1), and 

12.4(d)(3) are effective October 15, 2014. 

The effective date of 47 CFR 4.9(h), 

which requires a modification of 

existing OMB information collection 

3060–0484, will be published separately 

in the Federal Register once approved 

by OMB. 

FOR FURTHER INFORMATION CONTACT: For 

additional information contact Cathy 

Williams, Cathy.Williams@fcc.gov, (202) 

418–2918. 

SUPPLEMENTARY INFORMATION: This 

document announces that, on October 1, 

2014, OMB approved information 

collection requirements contained in the 

Commission’s Report and Order, FCC 


wreier-aviles on DSK5TPTVN1PROD with RULES