Restrictions on Legal Assistance to Aliens, 52488-52491 [E7-18194]

Download as PDF 52488 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. rmajette on PROD1PC64 with RULES 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 VerDate Aug<31>2005 14:52 Sep 13, 2007 Jkt 211001 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 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 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 E:\FR\FM\14SER1.SGM 14SER1 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: rmajette on PROD1PC64 with RULES 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. VerDate Aug<31>2005 14:52 Sep 13, 2007 Jkt 211001 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. PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 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)’’. E:\FR\FM\14SER1.SGM 14SER1 52490 Federal Register / Vol. 72, No. 178 / Friday, September 14, 2007 / Rules and Regulations 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. rmajette on PROD1PC64 with RULES 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 VerDate Aug<31>2005 14:52 Sep 13, 2007 Jkt 211001 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 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 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: E:\FR\FM\14SER1.SGM 14SER1 Federal Register / Vol. 72, No. 178 / Friday, September 14, 2007 / Rules and Regulations 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. rmajette on PROD1PC64 with RULES 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, VerDate Aug<31>2005 14:52 Sep 13, 2007 Jkt 211001 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 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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