Restrictions on Legal Assistance to Aliens, 42363-42366 [E7-15043]

Agencies

• LEGAL SERVICES CORPORATION

[Federal Register Volume 72, Number 148 (Thursday, August 2, 2007)]
[Proposed Rules]
[Pages 42363-42366]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-15043]


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LEGAL SERVICES CORPORATION

45 CFR Part 1626


Restrictions on Legal Assistance to Aliens

AGENCY: Legal Services Corporation.

ACTION: Termination of Rulemaking and Notice of Proposed Rulemaking.

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SUMMARY: LSC is terminating a rulemaking it initiated in 2001 to 
consider broad revisions to its regulation on restrictions on legal 
assistance. Contemporaneously, LSC is initiating a new rulemaking to 
consider a proposal of limited scope to amend section 1626.10(a) of 
this regulation to permit LSC grant recipients to provide legal 
assistance to otherwise financially eligible citizens of the Federated 
States of Micronesia, the Republic of the Marshall Islands and the 
Republic of Palau legally residing in the United States.

DATES: The open rulemaking published on September 10, 2001 (66 FR 
46977) is terminated as of August 2, 2007. Comments on this NPRM are 
due on September 4, 2007.

ADDRESSES: Written comments on the NPRM may be submitted by mail, fax 
or e-mail to Mattie Cohan, Senior Assistant General Counsel, Office of 
Legal Affairs, Legal Services Corporation, 3333 K Street, NW., 
Washington, DC 20007; 202-295-1624 (ph); 202-337-6519 (fax); 
mcohan@lsc.gov.

FOR FURTHER INFORMATION CONTACT: Mattie Cohan, Senior Assistant General 
Counsel, 202-295-1624 (ph); mcohan@lsc.gov.

SUPPLEMENTARY INFORMATION:

Termination of Open Rulemaking

    The LSC Board of Directors identified 45 CFR Part 1626 as an 
appropriate subject for rulemaking on January 27, 2001. On June 30, 
2001, the LSC President and the Chair of the Operations and Regulations 
Committee made a determination to proceed with the initiation of a 
Negotiated Rulemaking to consider amendments to Part 1626. In 
accordance with the LSC Rulemaking Protocol, LSC published a notice in 
the Federal Register formally soliciting suggestions for appointment to 
the Negotiated Rulemaking Working Group from the regulated community, 
its clients, advocates, the organized bar and other interested parties 
(66 FR 46977, September 10, 2001). After receiving submissions of 
interest, a Working Group was appointed. Each organization which timely 
requested to participate was appointed to the Working Group. The 
Working Group met three times without coming to consensus on several 
issues. Subsequently, work on the 2001 rulemaking was deferred in 2003 
by the previous Board of Directors pending the appointment and 
confirmation of the present Board. No further action on the rulemaking 
has been taken since that time.
    During the past several years as LSC has considered its rulemaking 
agenda, neither Management nor recipients have suggested reinitiating 
work on this broad rulemaking. As such, LSC is of the opinion that 
consideration of broad revision of Part 1626 is no longer necessary or 
appropriate. Accordingly, with the publication of this notice LSC is 
terminating the open rulemaking.

[[Page 42364]]

New Notice of Proposed Rulemaking

    LSC-funded legal services providers are permitted to provide legal 
assistance only to citizens of the United States and aliens upon whom 
eligibility has been expressly conferred by statute. LSC regulations at 
45 CFR Part 1626 implement the various existing statutory authorities 
and set forth the eligibility standards based on citizenship and 
eligible alien status. Since 1996 Part 1626 has limited the eligibility 
of citizens of the Republic of the Marshall Islands (``RMI'') and the 
Federated States of Micronesia (``FSM'') and the Republic of Palau to 
services provided in those respective nations (unless the applicant is 
otherwise eligible under Part 1626). In connection with LSC's 
development of a 2007 Rulemaking Agenda, the Legal Aid Society of 
Hawai'i (LASH) and Legal Aid of Arkansas (LAA) have both requested that 
LSC engage in rulemaking to change the section 1626.10(a) to provide 
for the eligibility of citizens of RMI, FSM and Palau legally residing 
in the United States for legal assistance from LSC-funded programs.
    LSC agrees that there is sufficient reason and authority for LSC to 
amend its regulation in this regard. To that end, the Operations and 
Regulations Committee of the LSC Board of Directors considered a Draft 
NPRM and the Board of Directors approved this NPRM for publication and 
comment at their respective meetings on July 28, 2007.

History of FAS Eligibility for Legal Assistance From LSC-Funded 
Programs

    At the time of the creation of LSC in 1974, the countries that are 
now the sovereign nations of the Republic of the Marshall Islands 
(``RMI''), the Federated States of Micronesia (``FSM''), and the 
Republic of Palau were possessions of the United States, known as the 
Trust Territories of the Pacific Islands (``the Trust Territories''). 
The LSC Act defined the Trust Territories as a ``State'' for the 
purposes of the Act. The Act thus conferred eligibility for LSC-funded 
legal services to Trust Territory residents to the same extent provided 
to residents of any other State of the United States. Section 1002(8) 
of the LSC Act, 42 U.S.C. 2996a(8).
    In 1983, Congress placed the first statutory restrictions on 
representation of aliens on LSC recipients in LSC's appropriations bill 
for that year, Public Law 97-377. That law provided that none of the 
funds appropriated could be expended to provide legal assistance for or 
on behalf of any alien unless the alien was a resident of the U.S. and 
otherwise met certain statutorily specified criteria. On its face, this 
language would have appeared to imply that all non-U.S. citizens, 
including residents of RMI, FSM and Palau would be subject to these 
restrictions, notwithstanding their eligibility under the LSC Act. To 
deal with this problem, LSC included a ``special eligibility section'' 
(Sec.  1626.10) in the implementing regulations on representation of 
aliens, 45 CFR part 1626, to exempt residents of the Trust Territory 
from the alien restrictions imposed by Congress.
    In 1986 the trust governing the relationship between the U.S. and 
the Trust Territories was terminated. At that time the former Trust 
Territories were recognized as independent nations and a new 
relationship with RMI, FSM and Palau was created by the signing of two 
Compacts of Free Association, one with RMI and FSM and the other with 
Palau. The Compact with RMI and FSM contemplates the provision of 
certain services and programs of the U.S. to those nations. 
Specifically, section 224 of the Compact of Free Association with RMI 
and FSM provides that:

    The Government of the United States and the Government of the 
Marshall Islands or the Federated States of Micronesia may agree 
from time to time to the extension of additional United States grant 
assistance, services and programs as provided by the laws of the 
United States, to the Marshall Islands or the Federated States of 
Micronesia, respectively.

    The Compact of Free Association Act of 1985 (``CFA Act'') (Pub. L. 
99-239, codified at 48 U.S.C. 1901 et seq.), which implemented the 
Compact, provides express authority for the provision of LSC-funded 
legal services. Specifically, section 105(h)(1)(A) of the CFA Act 
provides that:

* * * pursuant to section 224 of the Compact the programs and 
services of the [Legal Services Corporation] shall be made available 
to the Federated States of Micronesia and to the Marshall Islands.

    The implementing act for the Compact with Palau makes section 105 
of the CFA Act applicable to the Republic of Palau. 48 U.S.C. 
1932(b).\1\
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    \1\ RMI, FSM and Palau are collectively referred to as the 
``Freely Associated States'' or ``FAS.'' This designation will be 
used throughout the remainder of the supplementary information 
section.
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    After the signing of the respective Compacts and the corresponding 
implementing statutes, the FAS remained covered by the special 
eligibility section of Part 1626, notwithstanding their change in legal 
status vis-[agrave]-vis their relationship with the United States. In 
1989 that section of the regulation was amended to make the section 
more precise in light of the termination of the trust. Under this 
version of the rule, the special eligibility section provided:

    (a) Micronesia. The alien restriction stated in the 
appropriations acts is not applicable to the legal services program 
in the following Pacific island entities:
    (1) Commonwealth of the Northern Marianas;
    (2) Republic of Palau;
    (3) Federated States of Micronesia;
    (4) Republic of the Marshall Islands
    All citizens of these entities are eligible to receive legal 
assistance, provided they are otherwise eligible under the [LSC] 
Act.

54 FR 18812 (April 29, 1989). The preamble to the Final Rule adopting 
this language explained that this change was intended to ``restate[] 
congressional intent that residents of these political entities be 
eligible to be clients of a legal services program.'' Id. at 18110. The 
special eligibility section addressing the FAS remained as set forth 
above until 1996.
    As a result of new statutory restrictions contained in the LSC FY 
1996 appropriations legislation (Pub. L. 104-134), additional changes 
to Part 1626 were made in 1996. Although the statutory amendments did 
not address this issue, Sec.  1626.10(a) was again revised, this time 
in response to comments from the LSC Office of Inspector General (OIG). 
As explained in the preamble to the 1996 Final Rule:

    The OIG suggested that both the prior rule and the interim rule 
dealt with the question of special eligibility incorrectly and urged 
that the final rule refer only to the legal services programs 
serving people who were citizens of those jurisdictions. The effect 
of this change would be to make financially eligible citizens of the 
Federated States of Micronesia, the Republic of the Marshall Islands 
and the Republic of Palau only eligible for legal services from the 
recipients serving those areas * * *. They would not be eligible for 
services from any other recipients unless they also came within one 
of the categories of eligible aliens listed in section 1626.5 * * *.

62 FR 19413 (April 21, 1997). The OIG's comments were based upon its 
interpretation of the CFA Act that the language of the CFA Act provides 
authority for the provision of services within those nations, but does 
not expressly confer individual eligibility for services to the 
citizens of those nations without reference to where the service is to 
be provided. The Board considered the matter, agreed with the OIG 
analysis, and revised Sec.  1626.10(a) as follows.

    This part [1626] is not applicable to recipients providing 
services in the Commonwealth of the Northern Mariana Islands, the 
Republic of Palau, the Federated

[[Page 42365]]

States of Micronesia, or the Republic of the Marshall Islands.

62 FR 19413 (April 21, 1997); 45 CFR 1626.10(a). Thus, since 1996 
otherwise financially eligible residents of the FAS seeking assistance 
from legal services providers in the United States may only receive 
such assistance if they meet the alien eligibility requirements of 
Sec.  1626.5.

Alternative Interpretation of the Compact Act

    During the last session of Congress, legislation was passed in the 
Senate by unanimous consent on September 29, 2006, which would have 
definitively clarified the issue by clearly stating that LSC services 
were to be available to the citizens of the FAS. Specifically, section 
5 of S.1830, provided:

SEC. 5. AVAILABILITY OF LEGAL SERVICES.

    Section 105(f)(1)(C) of the Compact of Free Association 
Amendments Act of 2003 (48 U.S.C. 1921d(f)(1)(C)) is amended by 
inserting before the period at the end the following: ``, which 
shall also continue to be available to the citizens of the Federated 
States of Micronesia, the Republic of Palau, and the Republic of the 
Marshall Islands who legally reside in the United States (including 
territories and possessions)''.

    The report accompanying S.1830 explained that:

    Section 5 clarifies that section 105(f)(1)(C) of the CFAAA is 
intended to continue eligibility for the programs and services of 
the Legal Services Corporation for FSM and RMI migrants who legally 
reside in the United States. Legal Services Corporation eligibility 
was extended by the first Compact Act in 1986 (Pub. L. 99-239), but 
in 1996, without any further action by Congress, the Legal Services 
Corporation, by rule, terminated the eligibility of FSM and RMI 
migrants. Section 104(e) of the original Compact Act, and of the 
CFAAA, state that it is `not the intent of Congress to cause any 
adverse consequences for an affected area,' which are defined as 
Hawaii, Guam, the CNMI, and American Samoa. The Legal Services 
Corporation is one of those programs which had assisted local 
communities, in both the `affected areas' and in the mainland U.S., 
in responding to the impacts and needs of FSM and RMI citizens who 
were residing in U.S. communities. This section would restore 
eligibility as it existed from 1986 to 1996.

    Similar legislation was introduced in the House, but was not acted 
on during the course of the 109th Congress. Accordingly, there was no 
final legislation enacted into law on this subject in the last 
Congress. More recently, on January 12, 2007, S. 283, the Compact of 
Free Association Amendments Act was introduced in the Senate. On 
February 15, 2007, the bill was reported out of the Senate Committee on 
Energy and Natural Resources, accompanied by a written report. The 
operative language of the bill and report dealing with the availability 
of legal assistance from LSC recipients to citizens of the FAS, 
regardless of where they are obtaining those services, is the same as 
in last year's Senate bill (quoted above). A similar bill, H.R. 2705, 
has also been introduced in the House. As of the publication of this 
notice, both of the bills are still pending.
    In addition, LSC received a letter dated June 1, 2007, from David 
Cohen, Deputy Assistant Secretary for Insular Affairs at the Department 
of Interior. In his letter, Deputy Assistant Secretary Cohen stated:

    I can assure you that it is consistent with Federal policy under 
the Compacts and the [implementing] public laws * * * to allow FAS 
citizens lawfully resident in the United States to receive LSC 
services. * * * We are not aware of any intention to permit the 
extension of LSC benefits to FAS citizens in the FAS but to prevent 
the extension of those benefits to FAS citizens during their lawful 
residence in the United States.

    Subsequently, representatives of LSC met with the Deputy Assistant 
Secretary, several members of his staff and an attorney from the 
Department of State. They reiterated their understanding of the Compact 
and the CFA Act. In particular, they explained that the United States 
and the FAS countries negotiated the Compacts as essentially an aid 
package and that the Departments of Interior and State, as well as the 
FAS nations themselves, consider the extension of benefits to the FAS 
to include the extension of benefits to FAS citizens, regardless of 
where those citizens are lawfully residing (in the FAS or the United 
States). As an example, they noted that the CFA Act extends the Pell 
Grant (educational grants) program to the FAS and that the grants are 
provided to FAS citizens regardless of whether they are attending 
institutions of higher education in the FAS or in the United States. 
Similarly, FAS citizens are eligible for Job Corps services being 
provided in the United States.
    In light of the above, it would appear that LSC's interpretation of 
the CFA Act, while permissible, was not the only permissible reading 
and perhaps, in hindsight, not the best available reading. Moreover, 
LSC appears to be within its legal authority under the law to amend 
Sec.  1626.10 to permit FAS citizens to receive legal assistance 
anywhere LSC services are provided without requiring independent 
eligibility under Part 1626.

Need for Amendment of the Regulation--FAS Citizens in the United States

    When LSC was created in 1974, there were probably no more than a 
few thousand Micronesians living in Guam and Hawai'i, and a scattering 
in the continental United States. Even when the first Compact was 
negotiated in 1986, there were probably still less than ten thousand 
Micronesians living within U.S. territory, still mostly in Guam and 
Honolulu. However, when the Compact was renegotiated and extended in 
2002 it was then known that the migration pattern was showing greatly 
increased numbers in the continental United States. According to the 
Embassy of FSM there are, in addition to the traditionally high 
populations of Micronesians in Guam and Hawai'i, at least 30,000 to 
40,000 FSM citizens living or going to school in the continental U.S. 
Further, LAA has noted in its request to LSC for rulemaking on this 
issue that there are also 6,000 to 10,000 Marshallese living in 
Northwest Arkansas alone.
    Thus, while there was relatively little demand for legal services 
among FAS citizens in the United States in 1996, the increased 
migration of FAS citizens to the United States has significantly 
increased the potential demand for legal services among members of that 
community. The inability of financially eligible FAS citizens in the 
U.S. to access legal services from LSC programs assistance is a growing 
problem for the U.S. FAS community. LASH, for example, has noted that 
that FAS citizens working in Hawai'i are more likely to be victims of 
unscrupulous employers because they believe that such citizens have 
little recourse to legal services to protect their employment rights.

Proposed Amendment of Section 1626.10(a)

    LSC is proposing to amend section 1626.10(a) to redesignate the 
existing language in paragraph (a) as paragraph (a)(1) and to add a new 
paragraph (a)(2) to read as follows: ``All citizens of the Republic of 
Palau, the Federated States of Micronesia, and the Republic of the 
Marshall Islands residing in the United States are eligible to receive 
legal assistance provided that are they otherwise eligible under the 
Act.'' This language makes explicit that FAS citizens are eligible 
under Part 1626 for legal assistance and is consistent with the other 
eligibility provision in section 1626.10 addressing the eligibility of 
Canadian-born American Indians at least 50% Indians by blood, members 
of

[[Page 42366]]

the Texas Band of Kickapoo and foreign nationals seeing assistance 
pursuant to the Hague Convention. 45 CFR 1626.10(b); 1626.10(c); and 
1626.10(d). The ``otherwise eligible'' language is meant to refer to 
financial eligibility (for the provision of LSC-funded legal 
assistance'') and to the permissibility of the legal assistance 
provided under applicable law and regulation.

List of Subjects in 45 CFR Part 1626

    Aliens, Grant programs--law, Legal services, Migrant labor, 
Reporting and recordkeeping requirements.
    For reasons set forth above, and under the authority of 42 U.S.C. 
2996g(e), LSC proposes to amend 45 CFR Part 1626 as follows:

PART 1626--Restrictions on Legal Assistance to Aliens

    1. The authority citation for part 1626 continues to read as 
follows:

    Authority: Pub. L. 104-208, 110 Stat 1321; Pub L. 104-134, 110 
Stat. 3009.

    2. Amend Sec.  1626.10 by revising paragraph (a) to read as 
follows:


Sec.  1626.10  Special eligibility questions.

    (a)(1) This part is not applicable to recipients providing services 
in the Commonwealth of the Northern Mariana Islands, the Republic of 
Palau, the Federated States of Micronesia, or the Republic of the 
Marshall Islands.
    (2) All citizens of the Republic of Palau, the Federated States of 
Micronesia, and the Republic of the Marshall Islands residing in the 
United States are eligible to receive legal assistance provided that 
are they otherwise eligible under the Act.
* * * * *

Victor M. Fortuno,
Vice President and General Counsel.
 [FR Doc. E7-15043 Filed 8-1-07; 8:45 am]
BILLING CODE 7050-01-P