[Federal Register Volume 62, Number 76 (Monday, April 21, 1997)]
[Rules and Regulations]
[Pages 19400-19406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10037]
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LEGAL SERVICES CORPORATION
45 CFR Part 1612
Restrictions on Lobbying and Certain Other Activities
AGENCY: Legal Services Corporation.
ACTION: Final rule.
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SUMMARY: This final rule 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 that are currently
incorporated by reference in the Corporation's FY 1997 appropriations
act, and which prohibit recipients from engaging in agency rulemaking,
legislative lobbying activity or advocacy training. The final rule also
implements statutory exceptions to the prohibitions, which permit
recipients to use non-LSC funds to comment on public rulemaking,
respond to requests from legislative and administrative bodies, and
engage in efforts to encourage State and local governments to make
funds available for recipient activities. Finally, the final rule
continues the pre-existing prohibitions on participation in organizing
activities, public demonstrations and certain illegal activities.
DATES: Effective May 21, 1997.
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 with a
request for comments 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 most rulemaking, lobbying and advocacy training activities.
The Committee held hearings on staff proposals on July 10 and 19, 1996,
and the Board adopted an interim rule on July 20, 1996, for publication
in the Federal Register. Although the interim rule was effective upon
publication, see 61 FR 45741 (August 29, 1996), the Corporation also
solicited comments on the rule for review and consideration by the
Committee and Board.
Eight written timely comments were received by the Corporation. The
comments generally approved the rule, but raised technical and
clarifying issues as well as substantive policy concerns, particularly
about the participation of recipient attorneys in bar association
activities and in certain training programs. The Committee held public
hearings on the rule on December 13, 1996, and January 5, 1997, and
approved revisions to the interim rule to take into account the written
comments and LSC staff recommendations. The Board adopted the
Committee's recommended version on January 6, 1997, as a final rule.
The Corporation's FY 1997 appropriations act became effective on
October 1, 1996, see Pub. L. 104-208, 110 Stat. 3009. It incorporated
by reference the Sec. 504 conditions on LSC grants and other sections
of the FY 1996 appropriations act implemented by this rule.
Accordingly, the preamble and text of this rule continue to refer to
the applicable section number of the FY 1996 appropriations act.
A section-by-section discussion of this final 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, including rulemaking,
lobbying, grassroots lobbying, and advocacy training, banned by Section
504 in the Corporation's FY 1996 appropriations act, as incorporated by
the Corporation's FY 1997 appropriations act. The rule continues
existing provisions of the LSC Act that prohibit participation in
public demonstrations, strikes, boycotts and organizing activities. It
also provides guidance on when recipients may participate in public
rulemaking, respond to requests from legislative and administrative
bodies, and encourage State and local governments to make funds
available to support recipient activities. In response to comments that
the meaning of the term ``fundraising'' used in the interim rule was
misleading, the final rule deletes the term ``fundraising'' in order to
clarify that this part does not restrict efforts by recipients to
engage in resource development activities. The activity that is
restricted is what is commonly called ``self-interest lobbying,'' which
is any effort by recipients to encourage State or local governments to
appropriate funds for the financial support of recipients. This final
rule prohibits the use of LSC funds by recipients for self-interest
lobbying, but permits recipients to use non-LSC funds for such efforts.
Section 1612.2 Definitions
The final 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 was inconsistent with the
common sense usage of terms (such as the term
[[Page 19401]]
``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 definition does not use the term ``publicity
or propaganda,'' which was used in prior regulations, because the FY
1996 appropriations act does not use the term. 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, or explaining, pending or proposed legislation or
regulations. The interim rule would have allowed recipients to report
on the effect such legislation or regulations may have on eligible
clients or on their legal representation. This final rule has deleted
the reference to ``reporting on the effect of legislation'' with
language that permits recipients to explain pending and proposed
legislation. This change clarifies that it is appropriate for
recipients to prepare communications explaining the meaning and
analyzing pending or proposed legislation when communicating about such
legislation, but that it is inappropriate for recipients to prepare
communications that could be used for or interpreted as grassroots
lobbying. Thus, a recipient's communication about pending or proposed
legislation could explain what the legislation does, the changes it
would make in existing laws, the problems which the proposed
legislation addresses, and who would be affected by the proposal.
However, recipients could not prepare communications which encourage
the public to support or oppose proposed or pending legislation.
``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 has also retained the long-
standing interpretation that ``legislative bodies'' do not include
Indian Tribal Councils.
``Public policy'' is 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 did not
deal with lobbying activity but rather with electoral and partisan
political activities, which are governed by another LSC regulation, 45
CFR part 1608. The elimination of the term does not result in any
substantive change in any restriction on political activity.
``Rulemaking'' is defined to include the customary procedures on
rulemaking used by agencies, such as negotiated rulemaking and notice
and comment rulemaking procedures under the Federal Administrative
Procedure Act, or similar procedures used by State or local government
agencies. The term includes adjudicatory proceedings that formulate or
modify agency policy of general applicability and future effect, but
does not include administrative proceedings that produce determinations
that are of particular, rather than general, applicability, such as
Social Security hearings, welfare fair hearings or granting or
withholding of licenses. The definition also does not include efforts
by recipients to communicate 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.
The Committee considered but did not include in this final rule new
definitions for the terms ``employee'' and ``recipient'' in order to
reflect the different types of entities which may become recipients in
a system of competition. Currently, these terms are defined in 45 CFR
Sec. 1600.1. Until the Corporation makes clarifying changes in these
definitions, for the purposes of this rule, the term ``recipient''
includes all types of recipients, including law firms, and the term
``employee'' includes all personnel of recipients, including partners
and associates in law firms.
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-interest lobbying.
While this part sets out the Corporation's general restrictions on
lobbying and rulemaking, certain other LSC rules may also include
lobbying restrictions specific to the activity restricted in the
particular rule. See, e.g., 45 CFR part 1639 (welfare reform).
Paragraph (a) sets out the prohibitions on legislative lobbying.
Paragraph (b) prohibits participation in rulemaking and efforts to
influence executive orders, except as permitted in Secs. 1612.5 and
1612.6. 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. Thus, none of the activities
permitted under Secs. 1612.5 or 1612.6 may include grassroots lobbying.
Section 1612.5 Permissible Activities Using Any Funds
As with prior regulations regarding lobbying and rulemaking, the
final regulation seeks to clarify the activities that are not
prohibited by the rule. This list is not intended to be exhaustive.
Rather, it seeks to clarify those instances likely to raise close
questions.
Paragraph (a) provides that recipients may represent eligible
clients in administrative agency proceedings that
[[Page 19402]]
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.
Paragraph (c) includes a list of some of the other activities that
are not proscribed 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. In response to public comments, subparagraph (c)(1) was
added to make clear that recipients may apply for a governmental grant
or contract that is issued by a legislative body or administrative
agency. Subparagraph (c)(2) provides that 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. Under subparagraph
(c)(3), 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 them and explain proposed changes and their
effect, and advise their clients about their right to participate on
their own behalf in agency rulemaking proceedings.
Under subparagraph (c)(4), 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 only to contacts with government agencies and the
Corporation is not a department, agency or instrumentality of the
Federal Government, 42 U.S.C. 2996d(e)(1), recipients can contact LSC
about any matter and comment on LSC rules, regulations or policies.
Subparagraph (c)(5) allows recipient employees to participate in
bar association activities, provided that recipient resources are not
used to support and the recipient is not identified with activities of
bar associations that are devoted to activities prohibited by this
part. This provision is a change from that in the prior rule, which
permitted a recipient's employees to use recipient funds to participate
in bar activities involving otherwise prohibited advocacy, provided the
employee did not engage in grassroots lobbying. Although comments urged
the Corporation to retain the prior rule's policy, the Board determined
that a policy change was necessary, because the statutory prohibitions
on lobbying and rulemaking in 110 Stat. 1321 are significantly more
extensive and restrictive than in past legislation. Recognizing that
recipient attorneys participate in bar association activities as
members of the legal profession rather than as staff attorneys, this
new provision allows recipient attorneys to participate fully and
actively in bar association activities, provided that they do not use
recipient resources for and do not identify the recipient with any
activities devoted to activities proscribed by this part. Permissible
participation may include attending meetings and serving on committees
of a bar association or serving as an officer or in other leadership
roles in a bar association.
The Corporation recognizes that there will be some situations where
bar association activities will require the attorneys employed by a
recipient to decline participation or to participate on the attorney's
own time as, for example, when a bar association activity is devoted to
a prohibited activity, such as participating in a meeting whose
principal purpose is to determine and communicate the bar's position on
pending or proposed legislation or regulations. Recipient attorneys
must either decline to participate or participate solely on their own
time. On the other hand, recipient attorneys could use recipient
resources to attend and participate in a bar association meeting that
was not focused on prohibited legislative or regulatory activity and
where any discussion of prohibited activity was incidental to the
decisions and actions taken at the meeting. Because it is not possible
to craft a bright line between permissible and impermissible bar
association activities, attorneys employed by recipients will have to
exercise careful judgment when they are participating in bar
association activities that may involve prohibited activities.
Subparagraph (c)(6) allows recipients and their employees to 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,
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.
Finally, subparagraph (c)(7) permits recipients and their employees
to 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 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 appropriations act to be conducted
with non-LSC funds. Paragraphs (a) through (e) implement Sec. 504(e)
and delineate 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 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. Such response could include
testifying, providing information and analyses, and participating in
negotiated rulemaking. The Board deleted a reference in the interim
rule to testifying or providing information to commissions, committees
or advisory bodies because it judged that there was no need to single
out this particular activity from the more generic listings of
activities that could be undertaken in response to such a written
request. The Board did not intend, however, to restrict participation
on commissions, committees or advisory bodies provided that the
participation is consistent with the requirements of this section.
Under no circumstances may recipients engage in any grassroots lobbying
when
[[Page 19403]]
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 specific
distribution of written testimony to committee members. If required by
the agency or legislative rules, such distribution would be proper.
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) implements Sec. 504(e), which provides that
recipients may use non-LSC funds to provide oral or written comment to
an agency and its staff in a public rulemaking proceeding. 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) implements Sec. 504(b), which permits recipients to
engage in self-interest lobbying with non-LSC funds to seek funds for
program activities. Under this provision, 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. Consistent with Sec. 1612.6(c)(1), 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. Two technical changes were made from the interim
rule. Paragraph (a) was revised to clarify that the provision is
referring to ``recipient'' resources, and the term ``person'' is used
instead of ``employee.'' Thus, paragraph (a) prohibits any person 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, while providing legal
assistance or representation to the recipient's clients or while using
recipient resources provided by the Corporation or private entities.
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 activities engaged in by
employees 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 have been 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 be deemed a violation.
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 and Sec. 1007(b)(6) of
the LSC Act. Also, Sec. 1612.8(c) of the interim rule has been moved to
Sec. 1612.8(a)(4) of this rule.
Paragraph (a) sets out the prohibitions on advocacy training,
including the dissemination of information about public policies and
political activities. New subparagraph (4) clarifies that recipients
may not conduct a training program to train participants to engage in
activities prohibited by the Act, other applicable law, or Corporation
regulations, guidelines or instructions. A similar restriction was
included in both the interim and prior regulations, but the Board has
adopted language in this final rule which more carefully delineates the
scope of the restriction. Thus, under this new formulation of the
restriction, a recipient could not run a training program which
included training participants about how to engage in class actions,
lobbying, welfare reform and the like. This new formulation makes
clear, however, that using recipient resources, recipient employees may
attend and participate in training programs sponsored by bar
associations or continuing legal education institutes even if a portion
of the training program involved training about a prohibited activity.
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 existing
statute, order or regulation, 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.
[[Page 19404]]
This language was removed in both the interim and final rules as
unnecessary and self-evident.
Section 1612.9 Organizing
This section implements Sec. 1007(b)(7), 42 U.S.C.
Sec. 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 clarity. The final rule makes no changes from the
interim rule. 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 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. No
changes have been made from the interim rule. 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 burden on recipients.
Section 1612.11 Recipient Policies and Procedures
This section requires 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 was superseded by the interim rule and now
this final 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 non-LSC
public or private funds.
List of Subjects in 45 CFR Part 1612
Civil disorders, Grant program, Legal services, Lobbying.
For the reasons set forth in the preamble, 45 CFR part 1612 is
revised 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: Pub. L. 104-208, 110 Stat. 3009; Pub. L. 104-134, 110
Stat. 1321, secs. 504(a) (2), (3), (4), (5), (6), and (12), 504 (b)
and (e); 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 part 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 part also provides guidance on when recipients may participate in
public rulemaking or in efforts to encourage State or local governments
to make funds available to support recipient activities, and when they
may respond to requests of legislative and administrative officials.
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,
fundraising 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 on the content or status of, or explaining,
pending or proposed legislation or regulations.
(b) (1) 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, ratification of
treaties and intergovernmental agreements, approval of appointments and
budgets, and approval or disapproval of actions of the executive.
(2) Legislation 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 and pending or proposed
statutes, rules, and regulations.
[[Page 19405]]
(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 negotiated rulemaking and ``notice and comment''
rulemaking procedures under the Federal Administrative Procedure Act or
similar procedures used by State or local government agencies; 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) 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.
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) Applying for a governmental grant or contract;
(2) Communicating with a governmental agency for the purpose of
obtaining information, clarification, or interpretation of the agency's
rules, regulations, practices, or policies;
(3) Informing clients, other recipients, or attorneys representing
eligible clients about new or proposed statutes, executive orders, or
administrative regulations;
(4) Communicating directly or indirectly with the Corporation for
any purpose including commenting upon existing or proposed Corporation
rules, regulations, guidelines, instructions and policies;
(5) Permitting its employees to participate in bar association
activities, provided that recipient resources are not used to support
and the recipient is not identified with activities of bar associations
that are devoted to activities prohibited by this part.
(6) Advising a client of the client's right to communicate directly
with an elected official; or
(7) Participating in activity related to the judiciary, such as 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; or
(3) 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 made the request
and 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 for 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 use non-LSC funds to provide oral or written
comment to an agency and its staff in a public rulemaking proceeding.
(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
representation to the recipient's clients or while using recipient
resources provided by the Corporation or by private entities, no person
shall:
[[Page 19406]]
(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;
(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;
(3) Disseminate information about such policies or activities; or
(4) Train participants to engage in activities prohibited by the
Act, other applicable law, or Corporation regulations, guidelines or
instructions.
(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.
Sec. 1612.9 Organizing.
(a) Recipients may not use funds provided by the Corporation or by
private entities 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, 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: April 14, 1997.
Victor M. Fortuno,
General Counsel.
[FR Doc. 97-10037 Filed 4-18-97; 8:45 am]
BILLING CODE 7050-01-P