[Federal Register Volume 65, Number 189 (Thursday, September 28, 2000)]
[Notices]
[Pages 58295-58297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-24836]


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LEGAL SERVICES CORPORATION


Rulemaking Protocol

AGENCY: Legal Services Corporation.

ACTION: Announcement of adoption of rulemaking protocol and 
establishment of new rulemakings notification mailing list.

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SUMMARY: This notice sets forth the text of a new rulemaking protocol 
adopted by the LSC Board of Directors which will govern LSC rulemaking 
activities and announces the establishment of a mailing list for 
persons and organizations wishing to be notified of future LSC 
rulemakings.

DATES: This Rulemaking Protocol became effective upon its adoption at 
the LSC Board of Directors Meeting on September 18, 2000.

FOR FURTHER INFORMATION CONTACT: Mattie C. Condray, Senior Assistant 
General Counsel, Office of Legal Affairs, Legal Services Corporation, 
750 First Street, NE, Washington, DC 20002-4250; 202/336-8817 (phone); 
202/336-8952 (fax); [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Legal Services Corporation is authorized by Congress to issue 
regulations as necessary to carry out its mission. See 42 U.S.C. 
2996(e). LSC, however, is not a ``department, agency, or 
instrumentality of the Federal Government.'' 42 U.S.C. 2996(d). As 
such, LSC is not subject to the requirements of the Administrative 
Procedures Act, which governs the rulemaking activities of Federal 
agencies. Rather, LSC is required to ``afford notice and reasonable 
opportunity for comment to interested parties prior to issuing rules, 
regulations, and guidelines, and it shall publish in the Federal 
Register at least 30 days prior to their effective date all its rules, 
regulations, guidelines and instructions.'' 42 U.S.C. 2999(g).
    Throughout its history, LSC has conducted its rulemaking in 
compliance with the statutory requirements described above, but has not 
had a written statement of the Board of Directors (``Board'') setting 
forth the procedures to be followed in the course of LSC rulemaking 
activities. The Board determined that, while there is no legal 
requirement for LSC to have a written protocol related to rulemaking, 
having one would serve to advance LSC's policy of conducting its 
rulemaking activities in a spirit of cooperative dialog with our 
recipients and other interested parties. Accordingly, on September 18, 
2000, at a meeting of its Board of Directors, the Legal Services 
Corporation adopted a new Rulemaking Protocol to govern its rulemaking 
activities. The text of the Protocol is set forth below.
    It should be noted that, since this Protocol is a statement of LSC 
internal procedure and is not a ``rule, regulation, guideline or 
instruction,'' LSC is not required by law to publish this Protocol or 
seek public comment. LSC is choosing to publish this Protocol in the 
Federal Register (and has also posted it on the LSC website at 
http:\\www.lsc.gov) in furtherance of LSC's interest in and policy of 
conducting its business in a fair and open manner.

Rulemaking Protocol

    This Rulemaking Protocol is intended to reflect the policy of LSC 
to conduct its rulemaking activities in a spirit of cooperative dialog 
with our recipients and other interested parties \1\ and has the 
following six objectives:
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    \1\ Although this Draft Protocol reflects LSC policy, it is not 
intended to and shall not create or confer any rights for or on 
behalf of any person or party and shall not establish legally 
enforceable rights against LSC or establish any legally enforceable 
obligations on the part of LSC, its directors, officers, employees 
and other agents.
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    1. Enhanced implementation of the will of Congress as expressed in 
the LSC Act, amendments thereto and other statutory enactments;
    2. Increased public participation in the manner and method in which 
LSC promulgates rules;
    3. The adoption of procedures that reflect the best practices in 
rulemaking as articulated in the Administrative Procedures Act, the 
Negotiated Rulemaking Act of 1990 and Executive Order 12866;
    4. Implementation of LSC's strategic initiatives as set forth in 
Strategic Directions, 2000-2005 (adopted January 29, 2000);
    5. Formalization of LSC's policies governing rulemaking and 
specifically reserving specific responsibilities and authorities unto 
the Board; and
    6. Development of a rulemaking protocol that is efficient and 
effective.

Regulatory Policy Direction

    The Board, through the Operations and Regulations Committee 
(``Committee''), provides direction on LSC regulatory policy and 
establishes priorities for LSC rulemaking activities. The Committee 
will look to staff to effectuate LSC rulemaking policies and priorities 
through this Protocol. Final authority over LSC rulemaking policies and 
actions rests with the Board.

Initiation of Rulemaking

    The impetus for a rulemaking \2\ may come from any one of several 
sources; Congressional directive; internal LSC initiative (Board or 
Committee members and/or staff); or a formal request from a member of 
the regulated community or general public. Once the Board has agreed on 
a potential subject for rulemaking, LSC's Office of Legal Affairs \3\ 
(``OLA''), in close consultation with appropriate Corporation staff, 
will develop a Rulemaking Options Paper (``ROP''). The ROP will contain 
a discussion of the subject for the potential rulemaking, and will 
include an outline of the policy and legal issues involved. The ROP 
shall also recommend whether the potential rulemaking should be 
Negotiated or accomplished by Notice and Comment Rulemaking. The 
appropriate rulemaking process shall be selected on a case-by-case with 
full recognition, however, of LSC's policy favoring open and 
collaborative rulemaking. It is anticipated that most rulemaking will 
be Negotiated. \4\ Once the ROP is

[[Page 58296]]

developed, it will be submitted to the Committee. The Committee, acting 
through its Chair, shall consult with the President before deciding 
whether to proceed as recommended.
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    \2\ Rulemaking includes both the development of new rules and 
regulations and the amendment of existing rules and regulations.
    \3\ The Office of Legal Affairs is the office previously known 
as the Office of General Counsel and serves as legal advisor and 
corporate secretary to LSC.
    \4\ There may be instances in which use of Negotiated Rulemaking 
is unnecessary or inappropriate, such as for non-controversial 
issues or issues relating solely to LSC's internal operations. In 
such cases, LSC may determine that such issues should be handled 
solely through Notice and Comment Rulemaking.
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    If, after consultation with the President, the Committee elects to 
proceed with a rulemaking, the President will officially so notify the 
Board. The President will also inform the Inspector General (``IG'') 
that the rulemaking is being undertaken and communicate to the IG the 
general parameters of the proposed rule and the ROP. Notice that a 
rulemaking proceeding has begun will also be posted on the LSC website, 
indicating the subject matter of the rulemaking and whether the 
rulemaking will be Negotiated or accomplished through Notice and 
Comment. In addition to website notice, notice by mail will also be 
given those who have previously requested such notice and are included 
in the Corporation's mailing list dedicated to that purpose.

Negotiated Rulemaking

    In a Negotiated Rulemaking, a group comprised of LSC 
representatives and affected and/or interested parties will meet under 
the direction of a trained facilitator, (``Working Group'') \5\ with 
the intention of developing consensus-based positions leading to 
regulations. The key feature of Negotiated Rulemaking is its 
collaborative approach, which seeks consensus where possible and 
decisionmaking by LSC after full dialog with the regulated community 
and other interested parties.
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    \5\ The facilitator could be a professional facilitator hired by 
the LSC or could be an LSC employee who has received training in 
Alternative Dispute Resolution and facilitation methods (including 
training in areas such as recognizing leadership styles, methods for 
team-building, creating consensus and defusing conflict). In either 
case, the facilitator will be specifically assigned to act in a 
neutral capacity and not as an advocate of LSC policy or substantive 
expert in the matter at hand.
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    The President, in consultation with the Committee Chair, will 
solicit suggestions for appointment to the Working Group from the 
regulated community, its clients, advocates, the organized bar and 
other interested parties. The President, working in consultation with 
the Committee, acting through its Chair, will make appointments of 
individuals and organizations to the Working Group, including the 
facilitator and the OLA representative. All groups or organizations 
asked to participate in the Working Group shall be responsible for 
selecting and designating their representatives. It is expected that 
membership on the Working Group will be diverse and fully 
representative of the legal services community and other interested 
parties.
    The Working Group shall meet as necessary to develop a draft Notice 
of Proposed Rulemaking (``NPRM''). The members of the Working Group 
will, drawing upon their substantive expertise, discuss the subjects 
prompting the need for rulemaking and work toward developing a 
consensus on solutions to the problems identified.
    The OLA representative on the Working Group, with the assistance of 
a subgroup of the membership, shall draft the regulatory language 
consistent with achieved consensus. The Working Group will review the 
regulation to ensure it reflects any consensus reached, although the 
Corporation retains ultimate responsibility for crafting the regulatory 
language.
    The consensus proposal of the group, once developed, must go 
through the formal rulemaking process as an NPRM. At this point the 
Notice and Comment process described below will be followed.
    On occasion it may happen that no consensus can be reached by the 
Working Group on a regulatory proposal or some element thereof. In 
those instances, the President will report this to the Committee and 
seek direction from the Committee, acting through its Chair, on whether 
to continue the rulemaking using the Notice and Comment process or to 
terminate the rulemaking.

Notice and Comment Rulemaking

    In Notice and Comment Rulemaking, LSC develops rulemaking proposals 
and takes comment on them in writing and at certain publicly designated 
meetings of the Committee. Employing this process in conjunction with 
Negotiated Rulemaking will ensure that LSC's policy of cooperative 
dialog will be carried out in a fair, open and productive manner. LSC 
believes the Notice and Comment process will allow for an effective 
dialog between LSC and its recipients and other interested parties, 
even in those instances in which Negotiated Rulemaking is not used.
    OLA will have the primary responsibility for the drafting of the 
Draft NPRM, which includes both the proposed regulatory text and the 
proposed preamble, working with management, appropriate staff and the 
Office of Inspector General (``OIG'').\6\ The Draft NPRM will be shared 
with the OIG for review and comment. The Draft NPRM will be submitted 
to the President with a Statement of Issues. The President may then: 
approve the Draft NPRM for submission to the Committee for its 
consideration; return the Draft NPRM to OLA for revisions as necessary; 
or, jointly with the Committee, terminate the rulemaking.
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    \6\ Prior to the development of the NPRM, LSC may do some 
information gathering (either through seeking written comments or 
through formal or informal in-person outreach other otherwise) as 
necessary.
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    Once approved, the Draft NPRM will be set for consideration by the 
Committee at a public meeting. The Draft NPRM and Statement of Issues 
will be provided to the Committee sufficiently in advance of the 
meeting to permit their appropriate consideration. The notice of the 
meeting announcing the placement of the Draft NPRM on the Committee 
agenda will be published in the Federal Register and will recite that 
the Draft NPRM will be publicly available and will be posted on the LSC 
website. Posting of the Draft NPRM to the LSC website will be 
sufficiently in advance of the Committee meeting to permit appropriate 
consideration by interested parties.
    At the Committee meeting, management will present the Draft NPRM 
with the assistance of OLA and opportunity for public comment will be 
provided. The Committee will then deliberate and shall decide whether 
to publish the NPRM or return it to staff for revisions.
    Once the NPRM has been approved, OLA will make any necessary 
technical revisions to document before it is published in the Federal 
Register for comment.\7\ The comment period will be at least 30 days 
and, it is anticipated, in most instances will be 60 days (but could, 
under appropriate circumstances, be longer). However, the decision as 
to whether to limit the notice period to 30 days or to provide a longer 
comment period is a matter entirely within discretion of the Board.
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    \7\ During the comment period, LSC may, in its discretion, hold 
a public hearing at which interested parties make oral 
presentations, followed by written comments.
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    Copies of all comments received will be provided to the Committee 
and made available to other Board Members upon request. Copies of all 
comments will also be placed in a public docket available for 
inspection and copying in the FOIA Reading Room at the Corporation's 
offices. Copies of comments received in electronic format, along with 
an index of all comments received, will be placed into an 
``electronic'' docket on the LSC website.
    Upon the close of the comment period, OLA will draft a Final Rule

[[Page 58297]]

(which consists of the regulatory text and preamble).\8\ The draft of 
the Final Rule will be shared with the OIG for review and comment. The 
draft of the Final Rule will be submitted to the President with a 
Statement of Issues. The President may then: approve the draft of the 
Final Rule for submission to the Committee for its consideration; 
return it to OLA for revisions as necessary; or, jointly with the 
Committee, terminate the rulemaking.
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    \8\ On rare occasions, it may become necessary for LSC to raise 
additional issues for comment. In such a case, LSC may issue a 
Revised NPRM and repeat the comment process.
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    Once approved, the draft of the Final Rule will be set for 
consideration by the Committee at a public meeting. The draft of the 
Final Rule and Statement of Issues will be provided to the Committee 
and the Board sufficiently in advance of the meeting to permit 
appropriate consideration. In addition, a notice of the meeting 
announcing the placement of the Final Rule on the Committee agenda will 
be published in the Federal Register. At the Committee meeting, 
management will present a summary of the Comments and the draft Final 
Rule with the assistance of OLA. It is anticipated that the Committee 
will accept public comment as needed to assist in its deliberations. 
The Committee will vote on whether to recommend the Final Rule to the 
Board or return it to staff for revisions.
    If the draft Final Rule is approved by the Committee for review by 
the Board, the Board will consider the draft Final Rule and vote to 
adopt it or to return it to the Committee for further action. At its 
discretion, the Board may request the participation of members of the 
public during its deliberations. Once the Final Rule is adopted by the 
Board, OLA will make any necessary technical revisions to it and submit 
the final version for approval for publication to the Board's designee 
(for example, the Board Chair or the Committee Chair). The Final Rule 
will then be published in the Federal Register and placed on LSC's 
website.

Establishment of Mailing List

    As noted above, public notice that a rulemaking proceeding has 
begun will be accomplished through posting a notice to that effect on 
the LSC website, and by sending notice by mail to those who have 
previously requested such notice. With this notice, LSC is formally 
establishing a mailing list dedicated to that purpose. Persons and 
organizations wishing to be notified by mail when LSC undertakes a 
rulemaking proceeding should submit a notice indicating such interest 
and providing contact information (name, title, organization and 
mailing address) to Mattie C. Condray at the address listed above.

Victor M. Fortuno,
General Counsel and Vice President for Legal Affairs.
[FR Doc. 00-24836 Filed 9-27-00; 8:45 am]
BILLING CODE 7050-01-P