Restrictions on Legal Assistance With Respect to Criminal Proceedings, 21148-21151 [2014-08504]

Download as PDF ehiers on DSK2VPTVN1PROD with RULES 21148 Federal Register / Vol. 79, No. 72 / Tuesday, April 15, 2014 / Rules and Regulations ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing section 111(d) plan submissions, EPA’s role is to approve State choices, provided that they meet the criteria of the Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a section 111(d) plan submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a section 111(d) plan submission, to use VCS in place of a section 111(d) plan submission that otherwise satisfies the provisions of the Act. Thus, the requirements of section 12(d) of the National Technology VerDate Mar<15>2010 14:48 Apr 14, 2014 Jkt 232001 Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). PART 62—APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED FACILITIES AND POLLUTANTS 1. The authority citation for part 62 continues to read as follows: ■ B. Submission to Congress and the Comptroller General 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. This rule is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). Authority: 42 U.S.C. 7401 et seq. Subpart AA—Missouri 2. Section 62.6357 is amended by adding paragraph (e) to read as follows: ■ § 62.6357 Identification of plan. * * * * * (e) Amended plan for the control of air emissions from Municipal Solid Waste Landfills submitted by the Missouri Department of Natural Resources on February 9, 2012. The effective date of the amended plan is May 30, 2012. [FR Doc. 2014–08340 Filed 4–14–14; 8:45 am] BILLING CODE 6560–50–P LEGAL SERVICES CORPORATION C. Petitions for Judicial Review 45 CFR Part 1613 Under Section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 12, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving Missouri’s section 111(d) plan revision for SSI sources may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) Restrictions on Legal Assistance With Respect to Criminal Proceedings List of Subjects in 40 CFR Part 62 Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides. Dated: April 3, 2014. Karl Brooks, Regional Administrator, Region 7. Chapter I, title 40 of the Code of Federal Regulations is amended as follows: PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 Legal Services Corporation. Final rule. AGENCY: ACTION: This final rule updates the Legal Services Corporation (LSC or Corporation) regulation on legal assistance with respect to criminal proceedings. The Tribal Law and Order Act of 2010 (TLOA) amended the LSC Act to authorize LSC funds to be used for representation of persons charged with any criminal offense in tribal courts. This proposed rule will bring the regulations into alignment with the amended provisions of the LSC Act. The proposed rule will also revise the conditions under which LSC recipients can accept or decline court appointments to represent defendants in criminal proceedings. DATES: The effective date of this rule is May 15, 2014. FOR FURTHER INFORMATION CONTACT: Stefanie K. Davis, Assistant General Counsel, Legal Services Corporation, 3333 K Street NW., Washington, DC 20007, (202) 295–1563 (phone), (202) 337–6519 (fax), sdavis@lsc.gov. SUPPLEMENTARY INFORMATION: SUMMARY: I. General Authorities and Impetus for Rulemaking The Corporation first issued 45 CFR part 1613 in 1976 to implement a statutory prohibition on the use of LSC E:\FR\FM\15APR1.SGM 15APR1 Federal Register / Vol. 79, No. 72 / Tuesday, April 15, 2014 / Rules and Regulations funds to provide legal assistance in criminal cases. Section 1007 of the LSC Act prohibited the use of LSC funds to provide legal assistance ‘‘with respect to any criminal proceeding.’’ Sec. 1007(b)(2), Public Law 93–355, 88 Stat. 383 (42 U.S.C. 2996f(b)(2)). The original section 1613.2 defined ‘‘criminal proceeding’’ as ehiers on DSK2VPTVN1PROD with RULES the adversary judicial proceeding prosecuted by a public officer and initiated by a formal complaint, information, or indictment charging a person with an offense denominated ‘criminal’ by applicable law and punishable by death, imprisonment, or a jail sentence. A misdemeanor or lesser offense tried in an Indian tribal court is not a ‘criminal proceeding.’ 41 FR 38506, Sept. 10, 1976. The following year, Congress amended section 1007(b)(2) of the LSC Act to codify the Corporation’s exemption of minor crimes in tribal courts from the types of criminal proceedings for which LSC funds could not be used. Sec. 10(b), Public Law 95– 222, 91 Stat. 1620–1623. Congress made no further adjustments to the criminal prohibition provision until it enacted the Tribal Law and Order Act (TLOA) in 2010. The TLOA amended section 1007(b)(2) of the LSC Act to authorize the use of LSC funds to provide representation in all criminal proceedings before tribal courts. Sec. 235(d), Public Law 111–211, Tit. II, Subtitle C, 124 Stat. 2282 (42 U.S.C. 2996f(b)(2)). The TLOA also had two major effects on tribal criminal jurisdiction. First, it authorized tribal courts to impose longer sentences, increasing the maximum duration from up to one year to a total of nine years for multiple charges. Sec. 234(a), Public Law 111–211, Tit. II, Subtitle C, 124 Stat. 2280 (25 U.S.C. 1302(c)(2)). Second, it required tribes exercising the expanded sentencing authority ‘‘at the expense of the tribal government, [to] provide an indigent defendant the assistance of a defense attorney.’’ Sec. 234(c)(2), Public Law 111–211, Tit. II, Subtitle C, 124 Stat. 2280. Congress further expanded tribal court jurisdiction in 2013. Through the Violence Against Women Reauthorization Act of 2013 (2013 VAWA), Congress amended the Indian Civil Rights Act of 1968 to authorize tribal courts to exercise special criminal jurisdiction over domestic violence cases. Sec. 904(b)(1), Public Law 113–4, 127 Stat. 120–121 (25 U.S.C. 1304(a)). This ‘‘special domestic violence criminal jurisdiction’’ is exercised concurrently with state or Federal jurisdiction, or both, as applicable. Sec. 904(b)(2), Public Law 113–4, 127 Stat. VerDate Mar<15>2010 14:48 Apr 14, 2014 Jkt 232001 121 (25 U.S.C. 1304(b)(2)). Unlike prior congressional enactments, the 2013 VAWA explicitly authorizes tribes to exercise jurisdiction over both Indian and non-Indian defendants in certain circumstances. Sec. 904(b)(4), Public Law 113–4, 127 Stat. 121–22 (25 U.S.C. 1304(b)(4)). In order for the tribe to assert special domestic violence criminal jurisdiction, the alleged act must have occurred within Indian country. Sec. 904(c), Public Law 113–4, 127 Stat. 122 (25 U.S.C. 1304(c)). ‘‘Indian country’’ is a term of art defined in 18 U.S.C. 1151. If neither the victim nor the accused is Indian, the court may not exercise jurisdiction. Sec. 904(b)(4)(A)(i), Public Law 113–4, 127 Stat. 121 (25 U.S.C. 1304(b)(4)(A)(i)). If only the accused is a non-Indian, the court may exercise jurisdiction only if the accused resides in the Indian country over which the tribe has jurisdiction; is employed in the Indian country of the tribe; or is a spouse, intimate partner, or dating partner of a member of the tribe or an Indian who resides in the Indian country of the tribe. Sec. 904(b)(4)(B), Public Law 113–4, 127 Stat. 122 (25 U.S.C. 1304(b)(4)(B)). The 2013 VAWA also introduced another set of crimes in Indian country for which defendants are entitled to counsel at the tribal government’s expense. Section 904(d)(2) states that if a sentence of any length of time may be imposed, the defendant is entitled to all of the rights set forth in section 202(c) of the Indian Civil Rights Act. Sec. 904(d)(2), Public Law 113–4, 127 Stat. 122 (25 U.S.C. 1304(d)(2)). The TLOA previously amended section 202(c) to require tribes exercising expanded criminal sentencing authority to provide counsel to defendants facing total terms of imprisonment that would exceed one year. Sec. 234(a), Public Law 111–211, 124 Stat. 2280 (25 U.S.C. 1302(c)(2)). In summary, the TLOA and the 2013 VAWA amended the Indian Civil Rights Act to expand both the sentencing authority and the jurisdiction of tribal criminal courts. The TLOA also amended the LSC Act to allow the use of LSC funds for representation of criminal defendants in tribal courts facing sentences of more than a year. LSC grant recipients now have the option of using their LSC funds to provide criminal representation. Additionally, because tribes must provide defendants with counsel at tribal government expense in certain circumstances, LSC recipients may be faced with increasing numbers of judicial requests for appointments to represent criminal defendants. PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 21149 II. Procedural Background On January 25, 2013, the Operations and Regulations Committee (Committee) of the LSC Board of Directors (Board) voted to recommend that the Board authorize rulemaking to conform Part 1613 to the amendments to the LSC Act and to address recipients’ concerns regarding criminal appointments. On January 26, 2013, the Board authorized the initiation of rulemaking. In response to the statutory changes described above, LSC sought input from experts in tribal law, including tribal court officials and practitioners, and the public to determine whether the Corporation needed to amend its regulations. LSC published a Request for Information (RFI) regarding the restrictions on legal assistance with respect to criminal proceedings in tribal courts. 78 FR 27341, May 10, 2013. Additionally, during its July 22, 2013 meeting of the Board of Directors, the Committee heard from a panel of five experts in tribal law representing a variety of perspectives. Pursuant to the LSC Rulemaking Protocol, LSC staff prepared a proposed rule amending Part 1613 with an explanatory rulemaking options paper. On October 22, 2013, the Board approved the proposed rule for publication in the Federal Register for notice and comment. The NPRM was published in the Federal Register on November 4, 2013. 78 FR 65933, Nov. 4, 2013. The comment period remained open for thirty days and closed on December 4, 2013. On April 7, 2014, the Committee considered the draft final rule and recommended that the Board approve its publication. On April 8, 2014, the Board approved the final rule for publication. All of the comments and related memoranda submitted to the LSC Board regarding this rulemaking are available in the open rulemaking section of LSC’s Web site at http://www.lsc.gov/about/ regulations-rules/open-rulemaking. After the effective date of the rule, those materials will appear in the closed rulemaking section at http:// www.lsc.gov/about/regulations-rules/ closed-rulemaking. III. Discussion of Comments and Regulatory Provisions LSC received seven comments on the NPRM. Five comments were submitted by law students, one was submitted by the court clerk for the Snoqualmie Tribal Court, and one was submitted by Jonathan Asher, Executive Director of Colorado Legal Services, an LSC recipient. E:\FR\FM\15APR1.SGM 15APR1 21150 Federal Register / Vol. 79, No. 72 / Tuesday, April 15, 2014 / Rules and Regulations Three of the commenters supported the revisions to part 1613. One commenter opposed the revisions, and the other three commenters provided comments without expressing support for or opposition to the revisions to part 1613. LSC will address only the substantive comments in this preamble. All of the comments received are posted on the rulemaking page of LSC’s Web site: www.lsc.gov/about/regulationsrules. Section-by-Section Discussion of Comments and the Final Rule 1613.1 Purpose. The Corporation proposed to revise this section to state that LSC grant recipients may not represent individuals in criminal proceedings unless authorized by part 1613. The LSC Act has been amended twice to authorize criminal representation in tribal proceedings since the regulation was originally enacted in 1976, and the Corporation proposed to amend part 1613 to be consistent with those statutory amendments. LSC received no comments on this section of the proposed rule. 1613.2 Definition. LSC proposed to amend the definition of ‘‘criminal proceeding’’ to remove the exclusion of misdemeanors or lesser offenses in Indian tribal courts from the definition. The Corporation received no comments on this section of the proposed rule. ehiers on DSK2VPTVN1PROD with RULES 1613.4 Authorized representation. The Corporation proposed to revise § 1613.4(a) to allow recipients to undertake criminal appointments after a determination that such appointment ‘‘will not impair the recipient’s primary responsibility to provide civil legal services.’’ Under the current rule, recipients must determine that accepting a criminal appointment will be ‘‘consistent with’’ its primary responsibility to provide civil legal services. The Corporation believed the current standard does not provide meaningful guidance because any representation of a defendant in a criminal case could be characterized as not ‘‘consistent with’’ a recipient’s primary responsibility to provide civil legal services. The Corporation believed that changing the standard to impairment of the recipient’s primary responsibility to provide civil legal services would provide more meaningful guidance by permitting recipients to consider the impact of accepting a criminal appointment on a VerDate Mar<15>2010 14:48 Apr 14, 2014 Jkt 232001 recipient’s financial and human resources. Comments: The Executive Director of Colorado Legal Services expressed concern about the proposed change in the standard for declining a criminal appointment in both tribal and nontribal courts. He stated that ‘‘[c]hanging the standard from ‘inconsistent’ to ‘impair’ may inadvertently further limit and further complicate a grantee’s ability to provide representation to defendants in criminal cases in Tribal Court rather than ease the decision . . . A decision to accept a criminal case, arguably, would always ‘impair’ the grantees’ ability to provide civil legal assistance.’’ He further stated that while the Corporation may expect that its interpretations and analysis would apply to the revised standard, ‘‘it is inevitable that issues and new questions will arise and need to be addressed.’’ He requested that LSC consider either eliminating the standard for exercising discretion to accept or decline court appointments in criminal cases or, alternatively, amend the regulation to require that recipients be able to document a ‘‘rational basis’’ for exercising their discretion. One of the law student commenters suggested that the standard for accepting or declining a court appointment in a criminal case should turn not on whether acceptance would impinge upon a recipient’s ability to provide civil legal services, but whether acceptance is necessary to avoid injustice. The commenter asserted that the proposed change to the standard ‘‘encumbers’’ the goal of promoting equal access to justice ‘‘because [it does] not contemplate equal access to justice as being a relevant factor for a recipient to consider in determining whether to represent a criminal defendant in Indian tribal court.’’ The commenter proposed that recipients should consider many factors in deciding whether to accept a criminal appointment, including the availability of other competent counsel to defend the accused, the necessity of a background in Tribal criminal law, the complexity of the case, expertise in criminal law, the financial resources of the accused, and whether the accused is out on bond or being held in pretrial detention. Response: LSC will retain the language from the proposed rule. LSC continues to believe that the revised standard would provide more meaningful guidance by permitting recipients to consider the impact of accepting a criminal appointment on a recipient’s financial and human resources. The revised standard is not intended to impose greater limitations PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 on recipients’ decisions regarding court appointments. To the contrary, the Corporation intends the revised standard to create greater flexibility to exercise discretion. Nothing in the proposed rule prevents recipients from considering any of the factors noted by the student commenter, including whether representation is necessary to promote equal justice, when deciding whether to accept or decline a court appointment to represent a criminal defendant. 1613.5 Criminal representation in Indian tribal courts. The comments discussed in § 1613.4 immediately preceding (addressing representation in criminal proceedings generally) were also applicable by their terms to proposed § 1613.5. For the reasons stated in the preceding discussion, LSC is retaining the language from the proposed rule in § 1613.5. List of Subjects in 45 CFR Part 1613 Crime, Grant programs—law, Legal services, Tribal. For the reasons stated in the preamble, and under the authority of 42 U.S.C. 2996g(e), the Legal Services Corporation amends 45 CFR part 1613 as follows: PART 1613—RESTRICTIONS ON LEGAL ASSISTANCE WITH RESPECT TO CRIMINAL PROCEEDINGS 1. The authority citation for part 1613 is revised to read as follows: ■ Authority: Sec. 234(d), Public Law 111– 211, 124. Stat. 2282; 42 U.S.C. 2996f(b)(2); 42 U.S.C. 2996g(e). 2. Section 1613.1 is revised to read as follows: ■ § 1613.1 Purpose. This part is designed to ensure that Corporation funds will not be used to provide legal assistance with respect to criminal proceedings unless such assistance is authorized by this part. ■ 3. Section 1613.2 is revised to read as follows: § 1613.2 Definition. Criminal proceeding means the adversary judicial process prosecuted by a public officer and initiated by a formal complaint, information, or indictment charging a person with an offense denominated ‘‘criminal’’ by applicable law and punishable by death, imprisonment, or a jail sentence. ■ 4. In § 1613.4, paragraph (a) is revised to read as follows: E:\FR\FM\15APR1.SGM 15APR1 Federal Register / Vol. 79, No. 72 / Tuesday, April 15, 2014 / Rules and Regulations § 1613.4 Authorized representation. National Oceanic and Atmospheric Administration Effective 1200 hrs, Alaska local time (A.l.t.), April 10, 2014, through 1200 hrs, A.l.t., June 1, 2014. FOR FURTHER INFORMATION CONTACT: Josh Keaton, 907–586–7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the MagnusonStevens 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 B season allowance of the 2014 total allowable catch (TAC) of pollock in Statistical Area 620 of the GOA is 30,963 metric tons (mt) as established by the final 2014 and 2015 harvest specifications for groundfish of the GOA (79 FR 12890, March 6, 2014). In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the B season allowance of the 2014 TAC of pollock in Statistical Area 620 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 30,463 mt and is setting aside the remaining 500 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 pollock in Statistical Area 620 of the GOA. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip. 50 CFR Part 679 Classification DATES: * * * (a) Pursuant to a court appointment made under a statute or a court rule of equal applicability to all attorneys in the jurisdiction, if authorized by the recipient after a determination that acceptance of the appointment would not impair the recipient’s primary responsibility to provide legal assistance to eligible clients in civil matters. * * * * * ■ 5. Section 1613.5 is added to read as follows: § 1613.5 Criminal representation in Indian tribal courts. (a) Legal assistance may be provided with Corporation funds to a person charged with a criminal offense in an Indian tribal court who is otherwise eligible. (b) Legal assistance may be provided in a criminal proceeding in an Indian tribal court pursuant to a court appointment only if the appointment is made under a statute or a court rule or practice of equal applicability to all attorneys in the jurisdiction, and is authorized by the recipient after a determination that acceptance of the appointment would not impair the recipient’s primary responsibility to provide legal assistance to eligible clients in civil matters. Dated: April 10, 2014. Stefanie K. Davis, Assistant General Counsel. [FR Doc. 2014–08504 Filed 4–14–14; 8:45 am] BILLING CODE 7050–01–P DEPARTMENT OF COMMERCE [Docket No. 130925836–4174–02] RIN 0648–XD236 Fisheries of the Exclusive Economic Zone Off Alaska; Pollock in Statistical Area 620 in the Gulf of Alaska National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; closure. ehiers on DSK2VPTVN1PROD with RULES AGENCY: NMFS is prohibiting directed fishing for pollock in Statistical Area 620 in the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the B season allowance of the 2014 total allowable catch of pollock for Statistical Area 620 in the GOA. SUMMARY: VerDate Mar<15>2010 14:48 Apr 14, 2014 Jkt 232001 This action responds to the best available information recently obtained from the fishery. The Acting 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) and § 679.25(c)(1)(ii) 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 delay the closure of directed fishing for pollock in Statistical Area 620 of the GOA. NMFS was unable to publish a notice providing time for public comment PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 21151 because the most recent, relevant data only became available as of April 9, 2014. 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: April 10, 2014. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 2014–08529 Filed 4–10–14; 4:15 pm] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 130925836–4320–03] RIN 0648–XC895 Fisheries of the Exclusive Economic Zone Off Alaska; Gulf of Alaska; Final 2014 and 2015 Harvest Specifications for Groundfish; Correction National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule; harvest specifications and closures; correction. AGENCY: The National Marine Fisheries Service (NMFS) is correcting a final rule that published on March 6, 2014, implementing the final 2014 and 2015 harvest specifications and prohibited species catch allowances for the groundfish fishery of the Gulf of Alaska. One table in the document contained errors. DATES: Effective April 15, 2014. FOR FURTHER INFORMATION CONTACT: Obren Davis, 907–586–7228. SUPPLEMENTARY INFORMATION: SUMMARY: Need for Correction NMFS published the Gulf of Alaska (GOA) final 2014 and 2015 harvest specifications in the Federal Register on March 6, 2014 (79 FR 12890). A table providing information about the 2014 GOA non-exempt American Fisheries Act (AFA) catcher vessel (CV) halibut prohibited species catch (PSC) limits by season and fishery (Table 24) contained E:\FR\FM\15APR1.SGM 15APR1

Agencies

[Federal Register Volume 79, Number 72 (Tuesday, April 15, 2014)]
[Rules and Regulations]
[Pages 21148-21151]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-08504]


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LEGAL SERVICES CORPORATION

45 CFR Part 1613


Restrictions on Legal Assistance With Respect to Criminal 
Proceedings

AGENCY: Legal Services Corporation.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule updates the Legal Services Corporation (LSC or 
Corporation) regulation on legal assistance with respect to criminal 
proceedings. The Tribal Law and Order Act of 2010 (TLOA) amended the 
LSC Act to authorize LSC funds to be used for representation of persons 
charged with any criminal offense in tribal courts. This proposed rule 
will bring the regulations into alignment with the amended provisions 
of the LSC Act. The proposed rule will also revise the conditions under 
which LSC recipients can accept or decline court appointments to 
represent defendants in criminal proceedings.

DATES: The effective date of this rule is May 15, 2014.

FOR FURTHER INFORMATION CONTACT: Stefanie K. Davis, Assistant General 
Counsel, Legal Services Corporation, 3333 K Street NW., Washington, DC 
20007, (202) 295-1563 (phone), (202) 337-6519 (fax), sdavis@lsc.gov.

SUPPLEMENTARY INFORMATION:

I. General Authorities and Impetus for Rulemaking

    The Corporation first issued 45 CFR part 1613 in 1976 to implement 
a statutory prohibition on the use of LSC

[[Page 21149]]

funds to provide legal assistance in criminal cases. Section 1007 of 
the LSC Act prohibited the use of LSC funds to provide legal assistance 
``with respect to any criminal proceeding.'' Sec. 1007(b)(2), Public 
Law 93-355, 88 Stat. 383 (42 U.S.C. 2996f(b)(2)). The original section 
1613.2 defined ``criminal proceeding'' as

the adversary judicial proceeding prosecuted by a public officer and 
initiated by a formal complaint, information, or indictment charging 
a person with an offense denominated `criminal' by applicable law 
and punishable by death, imprisonment, or a jail sentence. A 
misdemeanor or lesser offense tried in an Indian tribal court is not 
a `criminal proceeding.'

41 FR 38506, Sept. 10, 1976.

    The following year, Congress amended section 1007(b)(2) of the LSC 
Act to codify the Corporation's exemption of minor crimes in tribal 
courts from the types of criminal proceedings for which LSC funds could 
not be used. Sec. 10(b), Public Law 95-222, 91 Stat. 1620-1623. 
Congress made no further adjustments to the criminal prohibition 
provision until it enacted the Tribal Law and Order Act (TLOA) in 2010.
    The TLOA amended section 1007(b)(2) of the LSC Act to authorize the 
use of LSC funds to provide representation in all criminal proceedings 
before tribal courts. Sec. 235(d), Public Law 111-211, Tit. II, 
Subtitle C, 124 Stat. 2282 (42 U.S.C. 2996f(b)(2)). The TLOA also had 
two major effects on tribal criminal jurisdiction. First, it authorized 
tribal courts to impose longer sentences, increasing the maximum 
duration from up to one year to a total of nine years for multiple 
charges. Sec. 234(a), Public Law 111-211, Tit. II, Subtitle C, 124 
Stat. 2280 (25 U.S.C. 1302(c)(2)). Second, it required tribes 
exercising the expanded sentencing authority ``at the expense of the 
tribal government, [to] provide an indigent defendant the assistance of 
a defense attorney.'' Sec. 234(c)(2), Public Law 111-211, Tit. II, 
Subtitle C, 124 Stat. 2280.
    Congress further expanded tribal court jurisdiction in 2013. 
Through the Violence Against Women Reauthorization Act of 2013 (2013 
VAWA), Congress amended the Indian Civil Rights Act of 1968 to 
authorize tribal courts to exercise special criminal jurisdiction over 
domestic violence cases. Sec. 904(b)(1), Public Law 113-4, 127 Stat. 
120-121 (25 U.S.C. 1304(a)). This ``special domestic violence criminal 
jurisdiction'' is exercised concurrently with state or Federal 
jurisdiction, or both, as applicable. Sec. 904(b)(2), Public Law 113-4, 
127 Stat. 121 (25 U.S.C. 1304(b)(2)). Unlike prior congressional 
enactments, the 2013 VAWA explicitly authorizes tribes to exercise 
jurisdiction over both Indian and non-Indian defendants in certain 
circumstances. Sec. 904(b)(4), Public Law 113-4, 127 Stat. 121-22 (25 
U.S.C. 1304(b)(4)).
    In order for the tribe to assert special domestic violence criminal 
jurisdiction, the alleged act must have occurred within Indian country. 
Sec. 904(c), Public Law 113-4, 127 Stat. 122 (25 U.S.C. 1304(c)). 
``Indian country'' is a term of art defined in 18 U.S.C. 1151. If 
neither the victim nor the accused is Indian, the court may not 
exercise jurisdiction. Sec. 904(b)(4)(A)(i), Public Law 113-4, 127 
Stat. 121 (25 U.S.C. 1304(b)(4)(A)(i)). If only the accused is a non-
Indian, the court may exercise jurisdiction only if the accused resides 
in the Indian country over which the tribe has jurisdiction; is 
employed in the Indian country of the tribe; or is a spouse, intimate 
partner, or dating partner of a member of the tribe or an Indian who 
resides in the Indian country of the tribe. Sec. 904(b)(4)(B), Public 
Law 113-4, 127 Stat. 122 (25 U.S.C. 1304(b)(4)(B)).
    The 2013 VAWA also introduced another set of crimes in Indian 
country for which defendants are entitled to counsel at the tribal 
government's expense. Section 904(d)(2) states that if a sentence of 
any length of time may be imposed, the defendant is entitled to all of 
the rights set forth in section 202(c) of the Indian Civil Rights Act. 
Sec. 904(d)(2), Public Law 113-4, 127 Stat. 122 (25 U.S.C. 1304(d)(2)). 
The TLOA previously amended section 202(c) to require tribes exercising 
expanded criminal sentencing authority to provide counsel to defendants 
facing total terms of imprisonment that would exceed one year. Sec. 
234(a), Public Law 111-211, 124 Stat. 2280 (25 U.S.C. 1302(c)(2)).
    In summary, the TLOA and the 2013 VAWA amended the Indian Civil 
Rights Act to expand both the sentencing authority and the jurisdiction 
of tribal criminal courts. The TLOA also amended the LSC Act to allow 
the use of LSC funds for representation of criminal defendants in 
tribal courts facing sentences of more than a year. LSC grant 
recipients now have the option of using their LSC funds to provide 
criminal representation. Additionally, because tribes must provide 
defendants with counsel at tribal government expense in certain 
circumstances, LSC recipients may be faced with increasing numbers of 
judicial requests for appointments to represent criminal defendants.

II. Procedural Background

    On January 25, 2013, the Operations and Regulations Committee 
(Committee) of the LSC Board of Directors (Board) voted to recommend 
that the Board authorize rulemaking to conform Part 1613 to the 
amendments to the LSC Act and to address recipients' concerns regarding 
criminal appointments. On January 26, 2013, the Board authorized the 
initiation of rulemaking.
    In response to the statutory changes described above, LSC sought 
input from experts in tribal law, including tribal court officials and 
practitioners, and the public to determine whether the Corporation 
needed to amend its regulations. LSC published a Request for 
Information (RFI) regarding the restrictions on legal assistance with 
respect to criminal proceedings in tribal courts. 78 FR 27341, May 10, 
2013. Additionally, during its July 22, 2013 meeting of the Board of 
Directors, the Committee heard from a panel of five experts in tribal 
law representing a variety of perspectives.
    Pursuant to the LSC Rulemaking Protocol, LSC staff prepared a 
proposed rule amending Part 1613 with an explanatory rulemaking options 
paper. On October 22, 2013, the Board approved the proposed rule for 
publication in the Federal Register for notice and comment. The NPRM 
was published in the Federal Register on November 4, 2013. 78 FR 65933, 
Nov. 4, 2013. The comment period remained open for thirty days and 
closed on December 4, 2013.
    On April 7, 2014, the Committee considered the draft final rule and 
recommended that the Board approve its publication. On April 8, 2014, 
the Board approved the final rule for publication.
    All of the comments and related memoranda submitted to the LSC 
Board regarding this rulemaking are available in the open rulemaking 
section of LSC's Web site at http://www.lsc.gov/about/regulations-rules/open-rulemaking. After the effective date of the rule, those 
materials will appear in the closed rulemaking section at http://www.lsc.gov/about/regulations-rules/closed-rulemaking.

III. Discussion of Comments and Regulatory Provisions

    LSC received seven comments on the NPRM. Five comments were 
submitted by law students, one was submitted by the court clerk for the 
Snoqualmie Tribal Court, and one was submitted by Jonathan Asher, 
Executive Director of Colorado Legal Services, an LSC recipient.

[[Page 21150]]

    Three of the commenters supported the revisions to part 1613. One 
commenter opposed the revisions, and the other three commenters 
provided comments without expressing support for or opposition to the 
revisions to part 1613. LSC will address only the substantive comments 
in this preamble. All of the comments received are posted on the 
rulemaking page of LSC's Web site: www.lsc.gov/about/regulations-rules.

Section-by-Section Discussion of Comments and the Final Rule

1613.1 Purpose.

    The Corporation proposed to revise this section to state that LSC 
grant recipients may not represent individuals in criminal proceedings 
unless authorized by part 1613. The LSC Act has been amended twice to 
authorize criminal representation in tribal proceedings since the 
regulation was originally enacted in 1976, and the Corporation proposed 
to amend part 1613 to be consistent with those statutory amendments. 
LSC received no comments on this section of the proposed rule.

1613.2 Definition.

    LSC proposed to amend the definition of ``criminal proceeding'' to 
remove the exclusion of misdemeanors or lesser offenses in Indian 
tribal courts from the definition. The Corporation received no comments 
on this section of the proposed rule.

1613.4 Authorized representation.

    The Corporation proposed to revise Sec.  1613.4(a) to allow 
recipients to undertake criminal appointments after a determination 
that such appointment ``will not impair the recipient's primary 
responsibility to provide civil legal services.'' Under the current 
rule, recipients must determine that accepting a criminal appointment 
will be ``consistent with'' its primary responsibility to provide civil 
legal services. The Corporation believed the current standard does not 
provide meaningful guidance because any representation of a defendant 
in a criminal case could be characterized as not ``consistent with'' a 
recipient's primary responsibility to provide civil legal services. The 
Corporation believed that changing the standard to impairment of the 
recipient's primary responsibility to provide civil legal services 
would provide more meaningful guidance by permitting recipients to 
consider the impact of accepting a criminal appointment on a 
recipient's financial and human resources.
    Comments: The Executive Director of Colorado Legal Services 
expressed concern about the proposed change in the standard for 
declining a criminal appointment in both tribal and non-tribal courts. 
He stated that ``[c]hanging the standard from `inconsistent' to 
`impair' may inadvertently further limit and further complicate a 
grantee's ability to provide representation to defendants in criminal 
cases in Tribal Court rather than ease the decision . . . A decision to 
accept a criminal case, arguably, would always `impair' the grantees' 
ability to provide civil legal assistance.'' He further stated that 
while the Corporation may expect that its interpretations and analysis 
would apply to the revised standard, ``it is inevitable that issues and 
new questions will arise and need to be addressed.'' He requested that 
LSC consider either eliminating the standard for exercising discretion 
to accept or decline court appointments in criminal cases or, 
alternatively, amend the regulation to require that recipients be able 
to document a ``rational basis'' for exercising their discretion.
    One of the law student commenters suggested that the standard for 
accepting or declining a court appointment in a criminal case should 
turn not on whether acceptance would impinge upon a recipient's ability 
to provide civil legal services, but whether acceptance is necessary to 
avoid injustice. The commenter asserted that the proposed change to the 
standard ``encumbers'' the goal of promoting equal access to justice 
``because [it does] not contemplate equal access to justice as being a 
relevant factor for a recipient to consider in determining whether to 
represent a criminal defendant in Indian tribal court.'' The commenter 
proposed that recipients should consider many factors in deciding 
whether to accept a criminal appointment, including the availability of 
other competent counsel to defend the accused, the necessity of a 
background in Tribal criminal law, the complexity of the case, 
expertise in criminal law, the financial resources of the accused, and 
whether the accused is out on bond or being held in pretrial detention.
    Response: LSC will retain the language from the proposed rule. LSC 
continues to believe that the revised standard would provide more 
meaningful guidance by permitting recipients to consider the impact of 
accepting a criminal appointment on a recipient's financial and human 
resources. The revised standard is not intended to impose greater 
limitations on recipients' decisions regarding court appointments. To 
the contrary, the Corporation intends the revised standard to create 
greater flexibility to exercise discretion. Nothing in the proposed 
rule prevents recipients from considering any of the factors noted by 
the student commenter, including whether representation is necessary to 
promote equal justice, when deciding whether to accept or decline a 
court appointment to represent a criminal defendant.

1613.5 Criminal representation in Indian tribal courts.

    The comments discussed in Sec.  1613.4 immediately preceding 
(addressing representation in criminal proceedings generally) were also 
applicable by their terms to proposed Sec.  1613.5. For the reasons 
stated in the preceding discussion, LSC is retaining the language from 
the proposed rule in Sec.  1613.5.

List of Subjects in 45 CFR Part 1613

    Crime, Grant programs--law, Legal services, Tribal.

    For the reasons stated in the preamble, and under the authority of 
42 U.S.C. 2996g(e), the Legal Services Corporation amends 45 CFR part 
1613 as follows:

PART 1613--RESTRICTIONS ON LEGAL ASSISTANCE WITH RESPECT TO 
CRIMINAL PROCEEDINGS

0
1. The authority citation for part 1613 is revised to read as follows:

    Authority: Sec. 234(d), Public Law 111-211, 124. Stat. 2282; 42 
U.S.C. 2996f(b)(2); 42 U.S.C. 2996g(e).


0
2. Section 1613.1 is revised to read as follows:


Sec.  1613.1  Purpose.

    This part is designed to ensure that Corporation funds will not be 
used to provide legal assistance with respect to criminal proceedings 
unless such assistance is authorized by this part.

0
3. Section 1613.2 is revised to read as follows:


Sec.  1613.2  Definition.

    Criminal proceeding means the adversary judicial process prosecuted 
by a public officer and initiated by a formal complaint, information, 
or indictment charging a person with an offense denominated 
``criminal'' by applicable law and punishable by death, imprisonment, 
or a jail sentence.

0
4. In Sec.  1613.4, paragraph (a) is revised to read as follows:

[[Page 21151]]

Sec.  1613.4  Authorized representation.

    * * *
    (a) Pursuant to a court appointment made under a statute or a court 
rule of equal applicability to all attorneys in the jurisdiction, if 
authorized by the recipient after a determination that acceptance of 
the appointment would not impair the recipient's primary responsibility 
to provide legal assistance to eligible clients in civil matters.
* * * * *

0
5. Section 1613.5 is added to read as follows:


Sec.  1613.5  Criminal representation in Indian tribal courts.

    (a) Legal assistance may be provided with Corporation funds to a 
person charged with a criminal offense in an Indian tribal court who is 
otherwise eligible.
    (b) Legal assistance may be provided in a criminal proceeding in an 
Indian tribal court pursuant to a court appointment only if the 
appointment is made under a statute or a court rule or practice of 
equal applicability to all attorneys in the jurisdiction, and is 
authorized by the recipient after a determination that acceptance of 
the appointment would not impair the recipient's primary responsibility 
to provide legal assistance to eligible clients in civil matters.

    Dated: April 10, 2014.
Stefanie K. Davis,
Assistant General Counsel.
[FR Doc. 2014-08504 Filed 4-14-14; 8:45 am]
BILLING CODE 7050-01-P