[Federal Register Volume 61, Number 169 (Thursday, August 29, 1996)]
[Rules and Regulations]
[Pages 45741-45747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21670]
-----------------------------------------------------------------------
LEGAL SERVICES CORPORATION
45 CFR Part 1612
Restrictions on Lobbying and Certain Other Activities
AGENCY: Legal Services Corporation.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim rule completely revises the Legal Services
Corporation's (``Corporation'' or ``LSC'') regulation on lobbying,
rulemaking and other restricted activities. It is intended to implement
provisions in the Corporation's FY 1996 appropriations act which
prohibit recipients from engaging in any agency rulemaking, in
legislative or lobbying activity or in advocacy training. The interim
rule also implements statutory exceptions to the prohibitions on
rulemaking and lobbying, which permit recipients to comment in public
rulemaking, respond to requests from legislative and administrative
bodies, and engage in State and local fund raising activities when
using non-LSC funds. Finally, the interim rule continues the pre-
existing prohibitions on participation in public
[[Page 45742]]
demonstrations and organizing activities. Although this interim rule is
effective upon publication, the Corporation solicits public comment on
the interim rule in anticipation of adoption of a final rule at a later
time.
DATES: This interim rule is effective on August 29, 1996. Comments must
be submitted on or before October 28, 1996.
ADDRESSES: Comments should be submitted to the Office of the General
Counsel, Legal Services Corporation, 750 First Street, NE., 11th Floor,
Washington, DC 20002-4250.
FOR FURTHER INFORMATION CONTACT: Victor M. Fortuno, General Counsel
(202) 336-8910.
SUPPLEMENTARY INFORMATION: On May 19, 1996, the Operations and
Regulations Committee (``Committee'') of the LSC Board of Directors
(``Board'') requested LSC staff to prepare an interim rule to implement
Secs. 504 (a)(2), (3), (4), (5), (6) and (12) and 504 (b) and (e) of
the Corporation's FY 1996 appropriations act, 110 Stat. 1321(1996),
prohibiting recipients from engaging in rulemaking, lobbying and
advocacy training activities. The Committee held hearings on staff
proposals on July 10 and 19, and the Board adopted this interim rule on
July 20 for publication in the Federal Register.
The Committee recommended and the Board agreed to publish this rule
as an interim rule. An interim rule is necessary in order to provide
prompt and critically necessary guidance to LSC recipients on
legislation which is already effective and which carries strong
penalties for noncompliance. Because of the great need for guidance on
how to comply with substantially revised legislative requirements,
prior notice and public comment are impracticable, unnecessary, and
contrary to the public interest. See 5 U.S.C. 553(b)(3)(B) and
553(d)(3). Accordingly, this rule is effective upon publication.
However, the Corporation also solicits public comment on the rule
for review and consideration by the Committee. After receipt of written
public comment, the Committee intends to hold public hearings to
discuss the written comments and to hear oral comments. It is
anticipated that a final rule will be issued which will supersede this
interim rule.
A section-by-section discussion of this interim rule is provided
below.
Section 1612.1 Purpose
The purpose of this rule is to ensure that LSC recipients and their
employees do not engage in certain activities banned by the
Corporation's FY 1996 appropriations act, 110 Stat. 1321, including
rulemaking, lobbying, grassroots lobbying, and advocacy training. The
rule also continues existing provisions of the LSC Act that prohibit
participation in public demonstrations, strikes, boycotts and
organizing activities. Finally, the rule also provides guidance on when
recipients may participate in public rulemaking, respond to requests
from legislative and administrative bodies, and seek funds from State
and local legislative bodies and administrative agencies using non-LSC
funds.
Section 1612.2 Definitions
The rule significantly revises the definitions that were used in
prior rules in order to reflect the new statutory restrictions and thus
ensure that recipients do not engage in prohibited activity and to
provide greater clarity about the scope of the restrictions. In
addition, definitions have been revised or eliminated because they are
no longer necessary or the prior definition defied the common sense
usage of terms (such as the term ``legislation,'' which was defined to
include administrative rulemaking).
``Grassroots lobbying'' is defined to prohibit all communications
and participation in activities which are designed to influence the
public to contact public officials to support or oppose pending or
proposed legislation. The new definition does not use the term
``publicity or propaganda'' which was used in prior regulations,
because the FY 1996 appropriations act, 110 Stat. 1321, does not use
these terms. However, the new definition of grassroots lobbying
incorporates the definition of ``publicity or propaganda'' that was
previously used. The definition also provides that ``grassroots
lobbying'' does not include communications which are limited solely to
reporting the content or status of pending or proposed legislation or
regulations, or the effect which such legislation or regulations may
have on eligible clients or on their legal representation.
``Legislation'' means any action or proposal for action by Congress
or by a State or local legislative body which is intended to prescribe
law or public policy. It does not include those actions of a
legislative body which adjudicate the rights of individuals under
existing laws (such as action taken by a local council sitting as a
Board of Zoning Appeals). The Corporation also retained the long-
standing interpretation that ``legislative bodies'' do not include
Indian Tribal Councils.
``Public policy'' was defined to include an overall plan embracing
the general goals and procedures of any governmental body as well as
pending or proposed statutes, rules, and regulations. This term is
found in this rule's section on training and is also found in the
definition of ``legislation.'' As used in Sec. 1612.8 in regard to
training, the modification of the definition from the prior regulation
ensures that, consistent with current law, information on existing laws
and regulations may be disseminated during training programs.
The definition of ``political activity'' is eliminated from this
regulation, because the provision in which it was used in the prior
rule has been deleted. The provision was deleted because it deals with
electoral and partisan political activities, not lobbying activities,
and is already in another LSC regulation, 45 CFR part 1608.
``Rulemaking'' is defined to include the customary procedures that
are used by an agency to develop and adopt proposals for the issuance,
amendment or revocation of regulations, or other statements of general
applicability and future effect, such as notice and comment rulemaking
procedures under the Federal Administrative Procedure Act or similar
procedures used by State or local government agencies as well as
negotiated rulemaking. Also ``rulemaking'' includes adjudicatory
proceedings that are formal adversarial proceedings intended to
formulate or modify an agency policy of general applicability and
future effect.
To clarify that recipients can participate in administrative
proceedings adjudicating the rights of individuals, ``rulemaking'' does
not include administrative proceedings that produce determinations that
are of particular, rather than general, applicability and affect only
the private rights, benefits or interests of individuals, such as
social security hearings, welfare fair hearings or granting or
withholding of licenses.
In addition,''rulemaking'' does not include litigation or any other
judicial proceedings challenging agency rules, regulations, guidelines,
policies or practices. The Committee Reports accompanying H.R. 2076,
the predecessor legislation to 110 Stat. 1321, the debate on the Senate
consideration of the Domenici Amendment [141 Cong. Rec. 14586 et seq.
(Sept. 24, 1995)] and the provisions of the McCollum-Stenholm bill,
H.R. 1806, from which the restrictions on lobbying and rulemaking were
taken, distinguish ``lobbying'' and ``rulemaking'' from litigation and
did not contemplate prohibiting litigation
[[Page 45743]]
under Secs. 504(a) (2)-(6) of 110 Stat. 1321. Finally, the prohibition
on rulemaking was not intended to prohibit recipients from
communicating with agency personnel for the purpose of obtaining
information, clarification, or interpretation of the agency's rules,
regulations, guidelines, policies or practices.
The term ``public rulemaking,'' which is used in Sec. 504(e) of 110
Stat. 1231, is defined as any rulemaking proceeding that is open to the
public. The term would include proceedings that are the subject of (1)
notices of proposed rulemaking published in the Federal Register or
similar State or local journals, (2) announcements of public hearings
on proposed rules or notices of proposed rulemaking, including those
that are routinely sent to interested members of the public or (3)
other similar notifications to members of the public.
The term ``similar procedure,'' which is used in the prohibition on
legislative lobbying in Sec. 504(a)(4) of 110 Stat. 1321, is defined to
mean a legislative process for the consideration of matters which by
law must be determined by a vote of the electorate.
Section 1612.3 Prohibited Legislative and Administrative Activities
This section sets out the broad prohibitions on lobbying and
rulemaking of Secs. 504(a) (2)-(6) of 110 Stat. 1321. These
prohibitions are far more extensive than those included in prior
appropriations' provisions or in the LSC Act, which permitted
rulemaking activity and direct contact with legislators on behalf of
clients or when engaged in self-help lobbying. The prohibitions of 110
Stat. 1321 prohibit any lobbying or rulemaking activity.
Paragraph (b) sets out the prohibitions on rulemaking and efforts
to influence executive orders. Under the prohibition, recipients cannot
participate in agency rulemaking proceedings such as is done through
notice and comment rulemaking, and adjudications intended to formulate
or modify agency policy.
Paragraph (c) tracks Sec. 504(a)(6) of 110 Stat. 1321, and provides
that recipients may not use any funds to pay for any personal service,
advertisement, telegram, telephone communication, letter, printed or
written matter, or any other device associated with an activity
prohibited in paragraphs (a) and (b) in this section.
Section 1612.4 Grassroots Lobbying
This section sets out the absolute prohibition on grassroots
lobbying by a recipient and its employees. There is no exception to the
prohibition on grassroots lobbying. For example, none of the activities
permitted under Sec. 1612.6 may include grassroots lobbying.
Section 1612.5 Permissible Activities Using Any Funds
Because the prohibitions on lobbying and rulemaking are extensive
and differ from past restrictions, the interim regulation seeks to
clarify the activities that are not included within the prohibition.
Previous LSC regulations on lobbying and rulemaking also listed
activities that were not prohibited. Paragraph (a) provides that
recipients may represent eligible clients in administrative agency
proceedings that are intended to adjudicate the rights of an individual
client, such as welfare and food stamp fair hearings, Social Security
or SSI hearings, public housing hearings, veterans benefits hearings,
unemployment insurance hearings and similar administrative adjudicatory
hearings or negotiations directly involving that client's legal rights
or responsibilities, including pre-litigation negotiation and
negotiation in the course of litigation.
Paragraph (b) provides that an employee of a recipient may initiate
or participate in any litigation challenging agency rules, regulations,
guidelines or policies, unless, of course, such litigation is otherwise
prohibited by law or other Corporation regulations, such as part 1639
on welfare reform or part 1617 on class actions. The legislative
history of the lobbying restrictions does not suggest that they were
intended to include litigation challenging agency regulations or
legislation.
Paragraph (c) includes a list of some of the other activities that
are not prescribed by the prohibitions on lobbying or rulemaking. The
listing includes many permissible activities that have been included in
prior regulations and others about which the Corporation has received
inquiries. First, recipients and employees of recipients can
communicate with a governmental agency for the purpose of obtaining
information, clarification, or interpretation of the agency's rules,
regulations, practices, or policies.
Second, recipients and their employees can inform clients, other
recipients or attorneys representing eligible clients about new or
proposed statutes, executive orders, or administrative regulations.
Thus recipients can advise clients about the effect of agency rules and
policies, analyze and explain proposed changes and their effect, and
advise their clients about their right to participate on their own
behalf in agency rulemaking proceedings.
Third, recipients and their employees may communicate directly or
indirectly with the Corporation for any purpose, including commenting
upon existing or proposed Corporation rules, regulations, guidelines,
instructions and policies. Because the restriction applies to contacts
with government agencies, recipients can contact LSC about any matter
and comment on LSC rules, regulations or policies, since the
Corporation is not a department, agency or instrumentality of the
Federal Government. 42 U.S.C. 2996d(e)(1).
Fourth, recipients and their employees can participate in meetings
or serve on committees of bar associations provided that no recipient
resources are used to support prohibited legislative or rulemaking
activities and the recipient is not identified with activities of bar
associations that include such prohibited activities. This is a change
from the current provisions on participation in bar association
activities, which permit a recipient's employees to use recipient funds
to participate in bar activities involving otherwise prohibited
advocacy, provided the employee does not engage in grassroots lobbying.
This change was made because the statutory prohibitions on lobbying and
rulemaking in 110 Stat. 1321 are far more extensive and restrictive
than in past legislation. This rule allows recipient attorneys to
participate in bar association activities, including holding an
official position in a bar association, because they participate as
members of the legal profession rather than as staff attorneys.
Nevertheless, the Corporation recognizes that there will be some
situations where bar association activities will require the staff of a
recipient to decline participation or to participate on the employee's
own time.
Fifth, recipients and their employees may advise a client of the
client's right to communicate directly with an elected official. For
example, recipient staff may advise specific clients whom they are
representing of the identity of their elected representatives are,
about how legislation is enacted, and about the procedures for
testifying. However, providing advice does not authorize recipient
staff to prepare testimony for their clients or to conduct formal
training sessions for clients on how to participate in lobbying or
rulemaking.
Sixth, recipients and their employees may participate in activity
related to the judiciary, such as the promulgation of court rules,
rules of professional responsibility or disciplinary rules or
participating on committees appointed
[[Page 45744]]
by the courts to advise the courts about judicial matters. However, a
recipient cannot become involved in any attempt to influence a
legislative body confirming judicial nominations.
Section 1612.6 Permissible Activities Using Non-LSC Funds
This section sets out activities authorized by Secs. 504 (b) and
(e) of the Corporation's FY 1996 appropriation's act with non-LSC
funds. Paragraphs (a) through (e) set out the parameters of Sec. 504(e)
and set out the records required to be maintained by recipients
responding to requests from appropriate officials. Paragraph (a)
provides that employees of recipients may use non-LSC funds from
sources other than the Corporation to respond to a written request from
a governmental agency or official thereof, elected official,
legislative body, committee, or member thereof made to the employee, or
to a recipient. Under no circumstances may recipients engage in any
grassroots lobbying when responding to a request for information or
testimony.
Paragraph (b) provides that responses to requests may be
distributed only to parties that make the request or to other persons
or entities to the extent that such distribution is required to comply
fully with the request. For example, agencies may require that those
requested to appear before an agency proceeding comply with agency or
legislative rules regarding how written testimony is to be given to a
legislative committee.
Paragraph (c) includes the statutory restriction that no employee
of the recipient shall solicit or arrange a request from any official
to testify or otherwise provide information in connection with
legislation or rulemaking.
In order to ensure compliance with Sec. 504(e), paragraph (d)
requires that recipients maintain copies of all written requests
received by the recipient and any written responses provided and make
such requests and written responses available to monitors and other
representatives of the Corporation upon request.
Paragraph (e) provides that recipients may provide oral or written
comment to an agency and its staff in a public rulemaking proceeding
when using non-LSC funds. This provision is included in Sec. 504(e).
Recipients may prepare written comments in response to a Notice of
Proposed Rulemaking in the Federal Register, in response to a similar
notice in a state or local publication, or in response to any notice to
the general public regarding a rulemaking proceeding that is public
under State or local law. Commenting in public rulemaking, however,
does not permit a recipient to engage in grassroots efforts to
encourage comment by other recipients or other persons.
Paragraph (f) sets out the provision of Sec. 504(b), 110 Stat.
1321, on contacts with State and local government agencies to seek
funds for program activities when using non-LSC funds. Recipients may
contact, communicate with, or respond to a request from a State or
local government agency, a State or local legislative body or
committee, or a member thereof, regarding funding for the recipient,
including a pending or proposed legislative or agency proposal to fund
such recipient. It should be noted that writing grant proposals in
response to a request for proposals is not covered by this section and
is not prohibited by this part. Both LSC and non-LSC funds may be used
for this activity.
Section 1612.7 Public Demonstrations and Activities
This section prohibits participation in public demonstrations and
related activities. Paragraph (a) prohibits any recipient employee from
participating in public demonstrations, picketing, boycotts, or strikes
(except as permitted by law in connection with the employee's own
employment situation) or encouraging, directing, or coercing others to
engage in such activities during working hours, or while providing
legal assistance or representation that is funded with LSC or private
funds. This section is similar to previous regulations, but the text
was rewritten to set out the prohibition more clearly.
Paragraph (b) sets out prohibitions on employee activities at any
time, whether during working hours or not. These prohibitions apply to
any recipient employee and apply regardless of what source of funds is
used for the employee's compensation. Thus, employees of a recipient
may not engage in or encourage others to engage in (1) any rioting or
civil disturbance; (2) any activity determined by a court to be in
violation of an outstanding injunction of any court of competent
jurisdiction; or (3) any other illegal activity that is inconsistent
with an employee's responsibilities under the LSC Act, appropriation
law, Corporation regulation, or the rules of professional
responsibility of the jurisdiction where the recipient is located or
the employee practices law.
Minor changes in the regulatory provisions were made from the
previous rule. First, the prohibition on identification of the
Corporation or any recipient with any political activity was removed
from part 1612 because an identical prohibition is included in 45 CFR
Sec. 1608.4(b). In addition, the regulatory language used in
Sec. 1612.7(b)(2) now explicitly provides that it is a court, and not
LSC, that should determine whether there has been a violation of an
outstanding injunction. Finally, the regulation clarifies in
Sec. 1612.7(b)(3) that the prohibition against the participation by
employees in other illegal activity refers to activity that violates
the LSC Act or other appropriate law or the rules of professional
responsibility in the jurisdiction where the recipient is located or
the employee practices law. By clarifying what activity is proscribed,
Sec. 1612.7(b)(3) gives realistic guidance to recipients about what
illegal activity would result in a violation of the LSC Act and what
employee activity recipients would have to police.
Consistent with the longstanding regulatory provisions, paragraph
(c) provides that the restrictions on public demonstrations, strikes
and boycotts do not prohibit an attorney working for or paid by a
recipient from (1) informing and advising a client about legal
alternatives to litigation or the lawful conduct thereof; or (2) taking
such action on behalf of a client as may be required by professional
responsibilities or applicable law of any State or other jurisdiction.
Section 1612.8 Training
This section implements the prohibitions on public policy advocacy
training in Sec. 504(a)(12) of 110 Stat. 1321. Paragraph (a) sets out
the prohibition on advocacy training.
Paragraph (b) tracks other provisions of Sec. 504(a)(12) and
provides that attorneys or paralegals may be trained to prepare them to
(1) provide adequate legal assistance to eligible clients and (2)
inform any eligible client of the client's rights under any statute,
order or regulation already enacted, or about the meaning or
significance of particular bills. In previous regulations on training,
there was an explicit statement that it was permissible to train
attorneys and paralegals to understand what activities are permitted or
prohibited under relevant laws and regulations. This language was
removed as unnecessary, since recipient staff must be trained on what
they can and cannot do under LSC regulations and applicable law.
Paragraph (c) includes a final restriction to address a problem
that may arise in training events sponsored or conducted by recipients
or their employees. It provides that recipients or
[[Page 45745]]
their employees may not conduct or participate in training programs
that are designed to train participants in activities prohibited by the
Act, other applicable Federal law, or Corporation regulations,
guidelines or instructions.
Section 1612.9 Organizing
This section implements Sec. 1007(b)(7), 42 U.S.C. 2996f(b)(7), of
the LSC Act which prohibits organizing activities. It is essentially
the same as in the prior rule but has been restructured for easier
reading. Paragraph (a) provides that no funds made available by the
Corporation or by private entities may be used to initiate the
formation or to act as an organizer of any association, federation,
labor union, coalition, network, alliance, or any similar entity.
Paragraph (b) includes the two existing exceptions that were included
in prior regulations. It first provides that the prohibition on
organizing does not apply to informational meetings attended by persons
engaged in the delivery of legal services at which information about
new developments in law and pending cases or matters are discussed.
Thus, recipients can establish or participate in task forces and other
meetings of advocates to share information and develop more effective
approaches to representation in particular subject areas. Paragraph (b)
also provides that the prohibition does not apply to organizations
composed exclusively of eligible clients formed for the purpose of
advising a legal services programs about the delivery of legal
services. Finally, paragraph (c) provides that the organizing
prohibition does not prevent recipients and their employees from
providing legal advice or assistance to eligible clients who desire to
plan, establish or operate organizations, such as by preparing articles
of incorporation and bylaws.
Section 1612.10 Recordkeeping and Accounting for Activities Funded
With Non-LSC Funds
This section implements Sec. 504(a)(6) of 110 Stat. 1321. Thus,
under paragraph (a) no LSC funds may be used to pay for administrative
overhead or related costs associated with any activity permitted to be
undertaken with non-LSC funds by Sec. 1612.6.
Paragraph (b) continues existing practice that requires recipients
to maintain separate records documenting the expenditure of non-LSC
funds for legislative and rulemaking activities permitted by
Sec. 1612.6.
Paragraph (c) provides that recipients shall submit semi-annual
reports describing their non-LSC funded legislative and rulemaking
activities conducted pursuant to these regulations under Sec. 1612.6,
together with such supporting documentation as specified by the
Corporation. The only change from existing policy is that the period
for reporting such activities has been changed from quarterly to semi-
annually in order to reduce the administrative burdens on recipients.
Section 1612.11 Recipient Policies and Procedures
A new section was added to require that recipients adopt written
policies and procedures to guide the recipient's staff in compliance
with the requirements of this part.
Additional Changes
The prior rule, which is superseded by this interim regulation,
included Sec. 1612.12, which set out enforcement procedures for Part
1612. Section 1612.12 was deleted because the Corporation will be
developing a comprehensive enforcement regulation that will address
enforcement of all regulations and restrictions. Section 1612.13,
permitting the use of private funds for certain lobbying activities,
was also deleted, because, under 110 Stat. 1321, all funds of a
recipient are restricted and the statutory exceptions to the
prohibitions in Sec. 1612.6 make no distinction between private funds
and non-LSC public funds.
List of Subjects in 45 CFR Part 1612
Civil disorders, Grant program--Law, Legal services, Lobbying.
For the reasons set forth in the preamble, LSC revises 45 CFR Part
1612 to read as follows:
PART 1612--RESTRICTIONS ON LOBBYING AND CERTAIN OTHER ACTIVITIES
Sec.
1612.1 Purpose.
1612.2 Definitions.
1612.3 Prohibited legislative and administrative activities.
1612.4 Grassroots lobbying.
1612.5 Permissible activities using any funds.
1612.6 Permissible activities using non-LSC funds.
1612.7 Public demonstrations and activities.
1612.8 Training.
1612.9 Organizing.
1612.10 Recordkeeping and accounting for activities funded with
non-LSC funds.
1612.11 Recipient policies and procedures.
Authority: Sections 504(a) (2), (3), (4), (5), (6), and (12),
504 (b) and (e), Pub. L. 104-134, 110 Stat. 1321; 42 U.S.C.
2996e(b)(5); 2996f(a) (5) and (6); 2996f(b) (4), (6) and (7), and
2996g(e).
Sec. 1612.1 Purpose.
The purpose of this rule is to ensure that LSC recipients and their
employees do not engage in certain prohibited activities, including
representation before legislative bodies or other direct lobbying
activity, grassroots lobbying, participation in rulemaking, public
demonstrations, advocacy training, and certain organizing activities.
The rule also provides guidance on when recipients may participate in
State or local fund raising or in public rulemaking, and when they may
respond to requests of legislative and administrative officials using
non-LSC funds.
Sec. 1612.2 Definitions.
(a)(1) Grassroots lobbying means any oral, written or
electronically transmitted communication or any advertisement,
telegram, letter, article, newsletter, or other printed or written
matter or device which contains a direct suggestion to the public to
contact public officials in support of or in opposition to pending or
proposed legislation, regulations, executive decisions, or any decision
by the electorate on a measure submitted to it for a vote. It also
includes the provision of financial contributions by recipients to or
participation by recipients in any demonstration, march, rally, fund
raising drive, lobbying campaign, letter writing or telephone campaign
for the purpose of influencing the course of such legislation,
regulations, decisions by administrative bodies, or any decision by the
electorate on a measure submitted to it for a vote.
(2) Grassroots lobbying does not include communications which are
limited solely to reporting the content or status of pending or
proposed legislation or regulations or the effect which such
legislation or regulations may have on eligible clients or on their
legal representation.
(b) Legislation means any action or proposal for action by Congress
or by a State or local legislative body which is intended to prescribe
law or public policy. The term includes, but is not limited to, action
on bills, constitutional amendments, the ratification of treaties and
intergovernmental agreements, approval of appointments and budgets, and
approval or disapproval of actions of the executive. It does not
include those actions of a legislative body which adjudicate the rights
of individuals under existing laws; nor does it include legislation
adopted by an Indian Tribal Council.
(c) Public policy means an overall plan embracing the general goals
and procedures of any governmental body
[[Page 45746]]
and pending or proposed statutes, rules, and regulations.
(d)(1) Rulemaking means any agency process for formulating,
amending, or repealing rules, regulations or guidelines of general
applicability and future effect issued by the agency pursuant to
Federal, State or local rulemaking procedures, including:
(i) The customary procedures that are used by an agency to
formulate and adopt proposals for the issuance, amendment or revocation
of regulations or other statements of general applicability and future
effect, such as ``notice and comment'' rulemaking procedures under the
Federal Administrative Procedure Act or similar procedures used by
State or local government agencies and negotiated rulemaking; and
(ii) adjudicatory proceedings that are formal adversarial
proceedings to formulate or modify an agency policy of general
applicability and future effect.
(2) Rulemaking does not include:
(i) administrative proceedings that produce determinations that are
of particular, rather than general, applicability and affect only the
private rights, benefits or interests of individuals, such as social
security hearings, welfare fair hearings or granting or withholding of
licenses;
(ii) communication with agency personnel for the purpose of
obtaining information, clarification, or interpretation of the agency's
rules, regulations, guidelines, policies or practices.
(e) Public rulemaking means any rulemaking proceeding or portion of
such proceeding or procedure that is open to the public through notices
of proposed rulemaking published in the Federal Register or similar
State or local journals, announcements of public hearings on proposed
rules or notices of proposed rulemaking including those that are
routinely sent to interested members of the public, or other similar
notifications to members of the public;
(f) The term similar procedure refers to a legislative process by
which matters must be determined by a vote of the electorate.
Sec. 1612.3 Prohibited legislative and administrative activities.
(a) Except as provided in Secs. 1612.5 and 1612.6, recipients shall
not attempt to influence--
(1) The passage or defeat of any legislation or constitutional
amendment;
(2) Any initiative, or any referendum or any similar procedure of
the Congress, any State legislature, any local council, or any similar
governing body acting in any legislative capacity;
(3) Any provision in a legislative measure appropriating funds to,
or defining or limiting the functions or authority of, the recipient or
the Corporation; or,
(4) The conduct of oversight proceedings concerning the recipient
or the Corporation.
(b) Except as provided in Secs. 1612.5 and 1612.6, recipients shall
not participate in or attempt to influence any rulemaking, or attempt
to influence the issuance, amendment or revocation of any executive
order.
(c) Recipients shall not use any funds to pay for any personal
service, advertisement, telegram, telephone communication, letter,
printed or written matter, administrative expense, or related expense,
associated with an activity prohibited in paragraphs (a) and (b) in
this section.
Sec. 1612.4 Grassroots lobbying.
A recipient shall not engage in any grassroots lobbying activity.
Sec. 1612.5 Permissible activities using any funds.
(a) A recipient may provide administrative representation for an
eligible client in a proceeding that adjudicates the particular rights
or interests of such eligible client or in negotiations directly
involving that client's legal rights or responsibilities including pre-
litigation negotiation and negotiation in the course of litigation.
(b) A recipient may initiate or participate in litigation
challenging agency rules, regulations, guidelines or policies, unless
such litigation is otherwise prohibited by law or Corporation
regulations.
(c) Nothing in this Part is intended to prohibit a recipient from--
(1) Communicating with a governmental agency for the purpose of
obtaining information, clarification, or interpretation of the agency's
rules, regulations, practices, or policies;
(2) Informing clients, other recipients, or attorneys representing
eligible clients, about new or proposed statutes, executive orders, or
administrative regulations;
(3) Communicating directly or indirectly with the Corporation for
any purpose including commenting upon existing or proposed Corporation
rules, regulations, guidelines, instructions and policies;
(4) Participating in meetings or serving on committees of bar
associations, provided that no recipient resources are used to support
prohibited legislative or rulemaking activities and the recipient is
not identified with activities of bar associations that include such
prohibited activities;
(5) Advising a client of the client's right to communicate directly
with an elected official; or
(6) Participating in activity related to the judiciary, including
the promulgation of court rules, rules of professional responsibility
and disciplinary rules.
Sec. 1612.6 Permissible activities using non-LSC funds.
(a) If the conditions of paragraphs (b) and (c) of this section are
met, recipients and their employees may use non-LSC funds to respond to
a written request from a governmental agency or official thereof,
elected official, legislative body, committee, or member thereof made
to the employee, or to a recipient to--
(1) Testify orally or in writing;
(2) Provide information which may include analysis of or comments
upon existing or proposed rules, regulations or legislation, or drafts
of proposed rules, regulations or legislation;
(3) Testify before or make information available to commissions,
committees or advisory bodies; or
(4) Participate in negotiated rulemaking under the Negotiated
Rulemaking Act of 1990, 5 U.S.C. 561 et seq., or comparable State or
local laws.
(b) Communications made in response to requests under paragraph (a)
may be distributed only to the party or parties that make the request
or to other persons or entities only to the extent that such
distribution is required to comply with the request.
(c) No employee of the recipient shall solicit or arrange a request
from any official to testify or otherwise provide information in
connection with legislation or rulemaking.
(d) Recipients shall maintain copies of all written requests
received by the recipient and written responses made in response
thereto and make such requests and written responses available to
monitors and other representatives of the Corporation upon request.
(e) Recipients may provide oral or written comment to an agency and
its staff in a public rulemaking proceeding using non-LSC funds.
(f) Recipients may use non-LSC funds to contact or communicate
with, or respond to a request from, a State or local government agency,
a State or local legislative body or committee, or a member thereof,
regarding funding for the recipient, including a pending or proposed
legislative or agency proposal to fund such recipient.
Sec. 1612.7 Public demonstrations and activities.
(a) During working hours, while providing legal assistance or
[[Page 45747]]
representation to the recipient's clients or while using resources
provided by the Corporation or by private entities, no employee of a
recipient shall--
(1) Participate in any public demonstration, picketing, boycott, or
strike, except as permitted by law in connection with the employee's
own employment situation; or
(2) Encourage, direct, or coerce others to engage in such
activities.
(b) No employee of a recipient shall at any time engage in or
encourage others to engage in any:
(1) Rioting or civil disturbance;
(2) Activity determined by a court to be in violation of an
outstanding injunction of any court of competent jurisdiction; or
(3) Other illegal activity that is inconsistent with an employee's
responsibilities under applicable law, Corporation regulations, or the
rules of professional responsibility of the jurisdiction where the
recipient is located or the employee practices law.
(c) Nothing in this section shall prohibit an attorney from--
(1) Informing and advising a client about legal alternatives to
litigation or the lawful conduct thereof; or
(2) Taking such action on behalf of a client as may be required by
professional responsibilities or applicable law of any State or other
jurisdiction.
Sec. 1612.8 Training.
(a) A recipient may not support or conduct training programs that--
(1) Advocate particular public policies; or
(2) Encourage or facilitate political activities, labor or anti-
labor activities, boycotts, picketing, strikes or demonstrations, or
the development of strategies to influence legislation or rulemaking;
or
(3) Disseminate information about such policies or activities.
(b) Nothing in this section shall be construed to prohibit training
of any attorneys or paralegals, clients, lay advocates, or others
involved in the representation of eligible clients necessary for
preparing them--
(1) To provide adequate legal assistance to eligible clients; or
(2) To provide advice to any eligible client as to the legal rights
of the client.
(c) No funds of a recipient shall be used to train participants to
engage in activities prohibited by the Act, other applicable Federal
law, or Corporation regulations, guidelines or instructions.
Sec. 1612.9 Organizing.
(a) No funds made available by the Corporation or by private
entities may be used to initiate the formation, or to act as an
organizer, of any association, federation, labor union, coalition,
network, alliance, or any similar entity.
(b) This section shall not be construed to apply to:
(1) Informational meetings attended by persons engaged in the
delivery of legal services at which information about new developments
in law and pending cases or matters are discussed; or
(2) Organizations composed exclusively of eligible clients formed
for the purpose of advising a legal services program about the delivery
of legal services.
(c) Recipients and their employees may provide legal advice or
assistance to eligible clients who desire to plan, establish or operate
organizations, such as by preparing articles of incorporation and
bylaws.
Sec. 1612.10 Recordkeeping and accounting for activities funded with
non-LSC funds.
(a) No funds made available by the Corporation shall be used to pay
for administrative overhead or related costs associated with any
activity listed in Sec. 1612.6.
(b) Recipients shall maintain separate records documenting the
expenditure of non-LSC funds for legislative and rulemaking activities
permitted by Sec. 1612.6.
(c) Recipients shall submit semi-annual reports describing their
legislative activities with non-LSC funds conducted pursuant to
Sec. 1612.6 of these regulations, together with such supporting
documentation as specified by the Corporation.
Sec. 1612.11 Recipient policies and procedures.
Each recipient shall adopt written policies and procedures to guide
its staff in complying with this part.
Dated: August 20, 1996.
Suzanne B. Glasow,
Senior Counsel for Operations and Regulations.
[FR Doc. 96-21670 Filed 8-28-96; 8:45 am]
BILLING CODE 7050-01-P