[Federal Register Volume 67, Number 223 (Tuesday, November 19, 2002)]
[Notices]
[Pages 69762-69765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-29231]


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LEGAL SERVICES CORPORATION


Rulemaking Protocol

AGENCY: Legal Services Corporation.

ACTION: Announcement of adoption of revised rulemaking protocol.

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SUMMARY: This notice sets forth the text of a revised rulemaking 
protocol adopted by the LSC Board of Directors which will govern LSC 
rulemaking activites.

DATES: This Rulemaking Protocol became effective upon its adoption at 
the LSC Board of Directors Meeting on November 9, 2002.

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.
    At its September 2002 meeting, the Board discussed how the 
Rulemaking Protocol and how rulemaking has proceeded under the 
Protocol, citing concerns over cost of the Negotiated Rulemakings being 
undertaken while endorsing the collaborative rulemaking approach 
promoted by the Protocol. The Board requested that staff provide at the 
next meeting a report detailing experience with the Rulemaking 
Protocol, to date, and recommending changes, as necessary to improve 
the Protocol. The requested report, including proposed changes to the

[[Page 69763]]

Protocol was provided and taken up by the Board at it meetings on 
November 8-9, 2002. The Board adopted the proposed revised Protocol, 
with some minor amendments. The text of the Protocol, as revised, 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.

LSC Rulemaking Protocol (as Revised by the LSC Board of Directors 11/9/
02)

    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 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. Decisions on whether to 
undertake rulemakings will be made by the Board upon the recommendation 
of the Committee.
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    \2\ Rulemaking includes both the development of new rules and 
regulations and the amendment of existing rules and regulations.
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    In most instances,\3\ prior to undertaking a rulemaking LSC's 
Office of Legal Affairs (``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 accomplished by Notice and Comment 
Rulemaking, including whether holding a Rulemaking Workshop would be 
appropriate, or whether it should be Negotiated.
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    \3\ The Committee and the Board retain the authority to initiate 
a rulemaking whether or not a ROP has been prepared. The ROP process 
is intended to aid the Committee and the Board in their respective 
deliberations and decisionmaking process.
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    Once the ROP is developed and approved by the LSC President, it 
will be submitted to the Committee. The Committee will have the 
opportunity to deliberate and determine whether to recommend to the 
Board that the Board initiate a rulemaking. If the Committee recommends 
that the Board initiate a rulemaking, the Committee deliberations will 
also provide an opportunity for the Committee to recommend policy 
direction on the scope and issues expected to be involved in the 
rulemaking. As noted above, the Board will make decisions regarding 
whether to undertake a rulemaking, the method to be used for the 
rulemaking, and any policy direction to be given to staff at the 
outset. The appropriate rulemaking process shall be selected on a case-
by-case basis consistent with the objectives of this Protocol.
    If the Board decides to undertake a rulemaking, notice that a 
rulemaking proceeding has begun will be posted on the LSC website, 
indicating the subject matter of the rulemaking and whether the 
rulemaking will be accomplished through Notice and Comment, including 
whether the Corporation anticipates holding a Rulemaking Workshop, or 
be Negotiated. 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.

Notice and Comment Rulemaking; Rulemaking Workshops

    In Notice and Comment Rulemaking, LSC develops rulemaking proposals 
and receives comment on them in writing and at certain publicly 
designated meetings of the Committee. As an adjunct to the Notice and 
Comment Process, LSC will, when appropriate, conduct Rulemaking 
Workshops. Rulemaking Workshops will enable LSC Board members and staff 
to meet with stakeholders prior to the development of a draft NPRM to 
discuss, but not negotiate, LSC rules and regulations. LSC believes the 
Notice and Comment process, including Rulemaking Workshops, will allow 
for an effective dialog between LSC and its recipients and other 
interested parties, in those instances in which Negotiated Rulemaking 
is not used.
    When the Board has decided to initiate a rulemaking and to conduct 
a Rulemaking Workshop, OLA will work with the Board and staff to select 
a date for the Rulemaking Workshop and will invite participants from 
the interested stakeholder community. The Workshop will be a meeting at 
which the participants hold open discussions designed to elicit 
information about problems or concerns with the regulation (or certain 
aspects thereof) and provide an opportunity for sharing ideas regarding 
how to address those issues. The Workshop is not intended to develop 
detailed alternatives or to obtain consensus on regulatory proposals. 
Upon the conclusion of the Workshop, the Board shall provide LSC staff 
with policy guidance on the issues discussed to aid staff in the 
development of the Draft Notice of Proposed Rulemaking (``NPRM'').
    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''). The Draft NPRM will be shared 
with the OIG for review and comment. The Draft NPRM will be submitted 
to the President. The President may then approve the Draft NPRM for 
submission to the Committee for its consideration or return the Draft 
NPRM to OLA for revisions as necessary.
    Once approved, the Draft NPRM will be set for consideration by the

[[Page 69764]]

Committee at a public meeting. The Draft NPRM will be provided to the 
Committee sufficiently in advance of the meeting to permit 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 Web site. In addition, the Draft NPRM 
will be distributed to each participant in the Rulemaking Workshop, if 
one has been held. Posting of the Draft NPRM to the LSC Web site and 
distribution to Workshop participants will be made upon distribution of 
the Draft NPRM to the Committee and 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, return it to staff for revisions, or recommend to 
the Board that the Board terminate the rulemaking.
    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.\4\ 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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    \4\ 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 
(which consists of the regulatory text and preamble).\5\ 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. The 
President may then approve the draft of the Final Rule for submission 
to the Committee for its consideration or return it to OLA for 
revisions as necessary.
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    \5\ 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 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, return it to staff for 
revisions, or recommend that the Board terminate the rulemaking.
    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, to return it to the Committee for further action, or to 
terminate the rulemaking. 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 Web site.

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, neutral facilitator, (``Working Group'') 
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. LSC intends to use negotiated rulemaking 
in instances in which LSC believes that the Notice and Comment process, 
including the use of Rulemaking Workshops, will not suffice and that 
the Negotiated Rulemaking process is necessary to properly address 
complex and/or controversial issues posed by the rulemaking.
    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. Working Groups will have no 
more than 15 members, representing the diversity of the legal services 
community and other interested parties. All groups or organizations 
asked to participate in a Working Group shall be responsible for 
selecting and designating their representatives. No members will be 
appointed to a Working Group after the Working Group had held its first 
meeting.
    The Working Group shall meet as necessary to develop a draft 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. During this process, staff will provide detailed status 
reports to the Committee during Committee meetings, including briefings 
on the substance of tentative areas of consensus and disagreement in 
order to provide the Committee with an opportunity to provide 
additional policy guidance to LSC staff (and other Working Group 
members in attendance at the Committee meeting) at that time.
    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 above 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

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Comment process or to terminate the rulemaking.

Victor M. Fortuno,
General Counsel and Vice President for Legal Affairs.
[FR Doc. 02-29231 Filed 11-18-02; 8:45 am]
BILLING CODE 7050-01-P