Restrictions on Legal Assistance to Aliens, 52488-52491 [E7-18194]
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Federal Register / Vol. 72, No. 178 / Friday, September 14, 2007 / Rules and Regulations
consequences to public health or the
environment. To the extent that
disadvantaged populations are
disproportionately at risk for such
effects, this rule may well result in
community benefits.
PART 247—COMPREHENSIVE
PROCUREMENT GUIDELINE FOR
PRODUCTS CONTAINING
RECOVERED MATERIALS
1. The authority citation for part 247
is revised to read as follows:
I
K. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2). This rule
will be effective September 15, 2008.
IX. Supporting Information and
Accessing Internet
Supporting materials for this final
CPG V are available in the OSWER
Docket and on the Internet. The address
and telephone number of the OSWER
Docket are provided in the
SUPPLEMENTARY INFORMATION section
above. Supporting materials can be
accessed on the Internet at
www.regulations.gov. Among the
supporting materials available in the
OSWER Docket and on the Internet are
the following:
‘‘Background Document for the Final
Comprehensive Guideline (CPG) V and
Final Recovered Materials Advisory
Notice (RMAN) V,’’ U.S. Environmental
Protection Agency, Office of Solid
Waste, August, 2007.
‘‘Economic Impact Analysis for Final
Comprehensive Procurement Guideline
V,’’ U.S. Environmental Protection
Agency, Office of Solid Waste, July
2007.
Authority: 42 U.S.C. 6912(a) and 6962; EO
13423, 72 FR 3919, 3 CFR, 1998 Comp., p.
210.
2. Section 247.3 is amended by
revising the definition of ‘‘compost’’ and
adding a definition in alphabetical order
for ‘‘fertilizer made from recovered
organic materials’’ to read as follows:
I
§ 247.3
Definitions.
*
*
*
*
*
Compost is a thermophilic converted
product with high humus content.
Compost can be used as a soil
amendment and can also be used to
prevent or remediate pollutants in soil,
air, and storm water run-off.
*
*
*
*
*
Fertilizer made from recovered
organic materials is a single or blended
substance, made from organic matter
such as plant and animal by-products,
manure-based or biosolid products, and
rock and mineral powders, that contains
one or more recognized plant nutrient(s)
and is used primarily for its plant
nutrient content and is designed for use
or claimed to have value in promoting
plant growth.
*
*
*
*
*
I 3. In § 247.15, revise paragraph (b)
and add paragraph (f) to read as follows:
§ 247.15
Landscaping products.
*
*
*
*
*
(b) Compost made from recovered
organic materials.
*
*
*
*
*
(f) Fertilizer made from recovered
organic materials.
[FR Doc. E7–18150 Filed 9–13–07; 8:45 am]
BILLING CODE 6560–50–P
LEGAL SERVICES CORPORATION
45 CFR Part 1626
Restrictions on Legal Assistance to
Aliens
Environmental protection,
Government procurement, Recycling.
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List of Subjects in 40 CFR Part 247
AGENCY:
ACTION:
Dated: September 6, 2007.
Stephen L. Johnson,
Administrator.
For the reasons discussed in the
preamble, title 40, chapter I, of the Code
of Federal Regulations, is amended as
follows:
I
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Legal Services Corporation.
Final rule.
SUMMARY: LSC is amending 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
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Palau legally residing in the United
States.
DATES: This final rule is effective as of
October 15, 2007.
FOR FURTHER INFORMATION CONTACT:
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.
SUPPLEMENTARY INFORMATION: LSCfunded 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 agreed that there was 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 an NPRM for
publication and comment at their
respective meetings on July 28, 2007.
That NPRM was published on August 2,
2007 (72 FR 42363).
LSC received twelve timely filed
comments and one late filed comment
on the NPRM. In addition to comments
from grantees, LSC received comments
from the Embassy of the Federated
States of Micronesia, several
organizations representing the
Micronesian community, community
services organizations providing aid and
services to citizens of RMI, FSM and
Palau, and two individual citizens.1 All
1 In addition to the comments filed directly in
response to the NPRM, LSC also notes that it had,
prior to the issuance of the NPRM, received letters
from the Department of Interior’s Office of Insular
Affairs and the Embassy of Palau, a letter signed by
several Members of Congress, and several oral
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Federal Register / Vol. 72, No. 178 / Friday, September 14, 2007 / Rules and Regulations
of the comments supported the
proposed rule change.
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’’ (§ 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:
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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
comments presented at the July 28, 2007 Operations
and Regulations Committee meeting. LSC considers
these comments as entirely consistent with and
supportive of the spirit and letter of the proposed
change to the regulation.
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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).2
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-a-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, § 1626.10(a) was again
revised, this time in response to
2 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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52489
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 § 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
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
§ 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)’’.
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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 (P.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.
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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
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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.
Several commenters specifically
addressed the issue of interpretation of
the treaty. These commenters agreed
that the different interpretation of the
CFA Act being considered was, indeed,
the better interpretation. They urged
LSC to amend the regulation to reflect
this alternate interpretation.
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
§ 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
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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. Several commenters on the
NPRM reiterated these statistics,
emphasizing the increasing migration of
FAS citizens to the U.S. and the legal
vulnerability of many members of this
community.
Amendment of § 1626.10(a)
LSC proposed to amend § 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 they are
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
§ 1626.10 addressing the eligibility of
Canadian-born American Indians at
least 50% Indian by blood, members of
the Texas Band of Kickapoo and foreign
nationals seeking 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. In light
of the information in the record, LSC is
now adopting the proposed amendment
as set forth in the NPRM.
List of Subjects in 45 CFR Part 1626
Aliens, Grant programs—law, Legal
services, Migrant labor, Reporting and
recordkeeping requirements.
I For reasons set forth above, and under
the authority of 42 U.S.C. 2996g(e), LSC
is amending 45 CFR part 1626 as
follows:
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PART 1626—RESTRICTIONS ON
LEGAL ASSISTANCE TO ALIENS
through 1200 hrs, A.l.t., December 31,
2007.
1. The authority citation for part 1626
continues to read as follows:
FOR FURTHER INFORMATION CONTACT:
I
Authority: Pub. L. 104–208, 110 Stat. 1321;
Pub L. 104–134, 110 Stat. 3009.
2. Amend § 1626.10 by revising
paragraph (a) to read as follows:
I
§ 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 they are
otherwise eligible under the Act.
*
*
*
*
*
Victor M. Fortuno,
Vice President and General Counsel.
[FR Doc. E7–18194 Filed 9–13–07; 8:45 am]
BILLING CODE 7050–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 070213033–7033–01]
RIN 0648–XC56
Fisheries of the Exclusive Economic
Zone Off Alaska; Atka Mackerel With
Gears Other than Jig in the Eastern
Aleutian District and the Bering Sea
Subarea in the Bering Sea and Aleutian
Islands Management Area
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closure.
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AGENCY:
SUMMARY: NMFS is prohibiting directed
fishing for Atka mackerel with gears
other than jig in the Eastern Aleutian
District and the Bering Sea subarea in
the Bering Sea and Aleutian Islands
management area (BSAI). This action is
necessary to prevent exceeding the 2007
Atka mackerel total allowable catch
(TAC) with gears other than jig in the
Eastern Aleutian District and the Bering
Sea subarea in the BSAI.
DATES: Effective 1200 hrs, Alaska local
time (A.l.t.), September 11, 2007,
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Jennifer Hogan, 907–586–7228.
NMFS
manages the groundfish fishery in the
BSAI according to the Fishery
Management Plan for Groundfish of the
Bering Sea and Aleutian Islands
Management Area (FMP) prepared by
the North Pacific Fishery Management
Council under authority of the
Magnuson-Stevens Fishery
Conservation and Management Act.
Regulations governing fishing by U.S.
vessels in accordance with the FMP
appear at subpart H of 50 CFR part 600
and 50 CFR part 679.
The 2007 Atka mackerel TAC for
gears other than jig in the Eastern
Aleutian District and the Bering Sea
subarea in the BSAI is 22,015 metric
tons (mt) as established by the 2007 and
2008 final harvest specifications for
groundfish in the BSAI (72 FR 9451,
March 2, 2007).
In accordance with § 679.20(d)(1)(i),
the Administrator, Alaska Region,
NMFS (Regional Administrator), has
determined that the 2007 Atka mackerel
TAC for gears other than jig in the
Eastern Aleutian District and the Bering
Sea subarea in the BSAI will soon be
reached. Therefore, the Regional
Administrator is establishing a directed
fishing allowance of 21,915 mt, and is
setting aside the remaining 100 mt as
bycatch to support other anticipated
groundfish fisheries. In accordance with
§ 679.20(d)(1)(iii), the Regional
Administrator finds that this directed
fishing allowance has been reached.
Consequently, NMFS is prohibiting
directed fishing for Atka mackerel for
gears other than jig in the Eastern
Aleutian District and the Bering Sea
subarea in the BSAI.
After the effective date of this closure
the maximum retainable amounts at
§ 679.20(e) and (f) apply at any time
during a trip.
SUPPLEMENTARY INFORMATION:
Classification
This action responds to the best
available information recently obtained
from the fishery. The Assistant
Administrator for Fisheries, NOAA
(AA), finds good cause to waive the
requirement to provide prior notice and
opportunity for public comment
pursuant to the authority set forth at 5
U.S.C. 553(b)(B) as such requirement is
impracticable and contrary to the public
interest. This requirement is
impracticable and contrary to the public
interest as it would prevent NMFS from
responding to the most recent fisheries
data in a timely fashion and would
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52491
delay the closure of Atka mackerel for
gears other than jig in the Eastern
Aleutian District and the Bering Sea
subarea of the BSAI. NMFS was unable
to publish a notice providing time for
public comment because the most
recent, relevant data only became
available as of September 10, 2007.
The AA also finds good cause to
waive the 30-day delay in the effective
date of this action under 5 U.S.C.
553(d)(3). This finding is based upon
the reasons provided above for waiver of
prior notice and opportunity for public
comment.
This action is required by § 679.20
and is exempt from review under
Executive Order 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: September 11, 2007.
Alan D. Risenhoover
Director, Office of Sustainable Fisheries,
National Marine Fisheries Service.
[FR Doc. 07–4561 Filed 9–11–07; 3:00 pm]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 070213032–7032–01]
RIN 0648–XC52
Fisheries of the Exclusive Economic
Zone Off Alaska; Shallow-Water
Species Fishery by Vessels Using
Trawl Gear in the Gulf of Alaska
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; modification of
a closure.
AGENCY:
SUMMARY: NMFS is opening directed
fishing for 12 hours for shallow-water
species by vessels using trawl gear in
the Gulf of Alaska (GOA). This action is
necessary to allow the shallow-water
species fishery in the GOA to resume.
DATES: Effective 0800 hrs, Alaska local
time (A.l.t.), September 11, 2007,
through 2000 hrs, A.l.t., September 11,
2007. Comments must be received at the
following address no later than 4:30
p.m., A.l.t., September 26, 2007.
ADDRESSES: Send comments to Sue
Salveson, Assistant Regional
Administrator, Sustainable Fisheries
Division, Alaska Region, NMFS, Attn:
Ellen Sebastian. Comments may be
submitted by:
• Mail to: P.O. Box 21668, Juneau, AK
99802;
E:\FR\FM\14SER1.SGM
14SER1
]]>Agencies
[Federal Register Volume 72, Number 178 (Friday, September 14, 2007)]
[Rules and Regulations]
[Pages 52488-52491]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-18194]
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LEGAL SERVICES CORPORATION
45 CFR Part 1626
Restrictions on Legal Assistance to Aliens
AGENCY: Legal Services Corporation.
ACTION: Final rule.
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SUMMARY: LSC is amending 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: This final rule is effective as of October 15, 2007.
FOR FURTHER INFORMATION CONTACT: 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.
SUPPLEMENTARY INFORMATION: 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 agreed that there was 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 an NPRM for publication and
comment at their respective meetings on July 28, 2007. That NPRM was
published on August 2, 2007 (72 FR 42363).
LSC received twelve timely filed comments and one late filed
comment on the NPRM. In addition to comments from grantees, LSC
received comments from the Embassy of the Federated States of
Micronesia, several organizations representing the Micronesian
community, community services organizations providing aid and services
to citizens of RMI, FSM and Palau, and two individual citizens.\1\ All
[[Page 52489]]
of the comments supported the proposed rule change.
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\1\ In addition to the comments filed directly in response to
the NPRM, LSC also notes that it had, prior to the issuance of the
NPRM, received letters from the Department of Interior's Office of
Insular Affairs and the Embassy of Palau, a letter signed by several
Members of Congress, and several oral comments presented at the July
28, 2007 Operations and Regulations Committee meeting. LSC considers
these comments as entirely consistent with and supportive of the
spirit and letter of the proposed change to the regulation.
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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).\2\
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\2\ 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 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)''.
[[Page 52490]]
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 (P.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.
Several commenters specifically addressed the issue of
interpretation of the treaty. These commenters agreed that the
different interpretation of the CFA Act being considered was, indeed,
the better interpretation. They urged LSC to amend the regulation to
reflect this alternate interpretation.
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.
Several commenters on the NPRM reiterated these statistics, emphasizing
the increasing migration of FAS citizens to the U.S. and the legal
vulnerability of many members of this community.
Amendment of Sec. 1626.10(a)
LSC proposed to amend Sec. 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 they are 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 Sec. 1626.10 addressing the eligibility of
Canadian-born American Indians at least 50% Indian by blood, members of
the Texas Band of Kickapoo and foreign nationals seeking 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. In light of the
information in the record, LSC is now adopting the proposed amendment
as set forth in the NPRM.
List of Subjects in 45 CFR Part 1626
Aliens, Grant programs--law, Legal services, Migrant labor,
Reporting and recordkeeping requirements.
0
For reasons set forth above, and under the authority of 42 U.S.C.
2996g(e), LSC is amending 45 CFR part 1626 as follows:
[[Page 52491]]
PART 1626--RESTRICTIONS ON LEGAL ASSISTANCE TO ALIENS
0
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.
0
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
they are otherwise eligible under the Act.
* * * * *
Victor M. Fortuno,
Vice President and General Counsel.
[FR Doc. E7-18194 Filed 9-13-07; 8:45 am]
BILLING CODE 7050-01-P
