Implementation of the Equal Access to Justice Act in Agency Proceedings, 6364-6370 [06-1146]
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on States, on the relationship between
the national government and the States,
or on the distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132, entitled
Federalism(64 FR 43255, August 10,
1999). Executive Order 13132 requires
EPA to develop an accountable process
to ensure ‘‘meaningful and timely input
by State and local officials in the
development of regulatory policies that
have federalism implications.’’ ‘‘Policies
that have federalism implications’’ is
defined in the Executive order to
include regulations that have
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’ This final rule
directly regulates growers, food
processors, food handlers and food
retailers, not States. This action does not
alter the relationships or distribution of
power and responsibilities established
by Congress in the preemption
provisions of section 408(n)(4) of
FFDCA. For these same reasons, the
Agency has determined that this rule
does not have any ‘‘tribal implications’’
as described in Executive Order 13175,
entitled Consultation and Coordination
with Indian Tribal Governments (65 FR
67249, November 6, 2000). Executive
Order 13175, requires EPA to develop
an accountable process to ensure
‘‘meaningful and timely input by tribal
officials in the development of
regulatory policies that have tribal
implications.’’ ‘‘Policies that have tribal
implications’’ is defined in the
Executive order to include regulations
that have ‘‘substantial direct effects on
one or more Indian tribes, on the
relationship between the Federal
Government and the Indian tribes, or on
the distribution of power and
responsibilities between the Federal
Government and Indian tribes.’’ This
rule will not have substantial direct
effects on tribal governments, on the
relationship between the Federal
Government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
Government and Indian tribes, as
specified in Executive Order 13175.
Thus, Executive Order 13175 does not
apply to this rule.
VIII. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
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submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of this final
rule in the Federal Register. This final
rule is not a ‘‘major rule’’ as defined by
5 U.S.C. 804(2).
DEPARTMENT OF THE INTERIOR
List of Subjects in 40 CFR Part 180
Environmental protection,
Administrative practice and procedure,
Agricultural commodities, Pesticides
and pests, Reporting and recordkeeping
requirements.
SUMMARY: The Office of Hearings and
Appeals (OHA) is amending its
regulations that implement the Equal
Access to Justice Act to bring them up
to date with amendments to the statute
that have been enacted since 1983.
DATES: Effective Date: February 8, 2006.
FOR FURTHER INFORMATION CONTACT: Will
A. Irwin, Administrative Judge, Interior
Board of Land Appeals, U.S.
Department of the Interior, 801 N.
Quincy Street, Suite 300, Arlington,
Virginia 22203, Phone 703–235–3750.
Persons who use a telecommunications
device for the deaf (TDD) may call the
Federal Information Relay Service
(FIRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:
Dated: January 30, 2006.
Lois Rossi,
Director, Registration Division, Office of
Pesticide Programs.
Therefore, 40 CFR chapter I is
amended as follows:
I
PART 180—[AMENDED]
1. The authority citation for part 180
continues to read as follows:
I
Authority: 21 U.S.C. 321(q), 346a and 371.
2. Section 180.589 is amended as
follows:
I a. In the table to paragraph (a)(1) by
revising the entry for ‘‘Almond, hulls’’
and alphabetically adding commodities.
I b. In the table to paragraph (d) by
revising the entry ‘‘Vegetable, leafy,
group 4, except lettuce’’.
I
Office of the Secretary
43 CFR Part 4
RIN 1094–AA49
Implementation of the Equal Access to
Justice Act in Agency Proceedings
Office of the Secretary, Interior.
Final rule.
AGENCY:
ACTION:
I. Background
OHA published a proposed rule on
October 5, 2005, to update its
regulations that implement the Equal
Access to Justice Act (EAJA), 5 U.S.C.
504 (2000). 70 FR 58167–58175 (October
5, 2005). Those regulations were first
promulgated in 1983. 48 FR 17596
§ 180.589 Boscalid; tolerances for
(April 25, 1983). A section-by-section
residues.
analysis of the proposed regulations was
(a) * * *
provided. 70 FR 58168–58170 (October
(1) * * *
5, 2005).
We received one comment on the
Commodity
Parts per million
proposed rule, from Hobbs, Straus, Dean
Almond, hulls ..................
17 & Walker, LLP, on behalf of client
*
*
*
*
*
Indian tribes and organizations. It
Banana, import1 ..............
0.20
‘‘applaud[ed]’’ the proposed changes
*
*
*
*
*
Celery .............................
45 and recommended that they be made
applicable to cases pending before OHA
*
*
*
*
*
Spinach ...........................
60 on the date the regulations become
*
*
*
*
*
effective. We accept this suggestion.
Although we proposed to omit section
1
No US registration as of January 31,
4.604 (‘‘Applicability to Department of
2006.
the Interior proceedings’’) of the 1983
*
*
*
*
*
regulations because it is no longer
(d)* * *
needed, 70 FR 58169 (October 5, 2005),
we did not intend that the 1983
Commodity
Parts per million
regulations would apply to cases
pending when the new regulations
*
*
*
*
*
Vegetable, leafy, group
became effective. We have added
4, except lettuce, celparagraph (b) to section 4.601 of the
ery and spinach ..........
1.0 regulations to make our intention
*
*
*
*
*
explicit that, when the new regulations
become effective, they will apply to any
[FR Doc. 06–1170 Filed 2–7–06; 8:45 am]
EAJA application pending then or filed
BILLING CODE 6560–50–S
subsequently.
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We explained in the proposed rule
that we had omitted any reference to
fees for ‘‘agents’’ in section 4.606
because the Department does not
authorize specialized non-attorney
practitioners to practice before it. 70 FR
58169 (October 5, 2005). We have added
a new paragraph (a) to section 4.606 to
specify that an award is limited to the
fees and expenses of attorneys and
expert witnesses.
The regulations are otherwise adopted
as proposed.
II. Procedural Requirements
A. Decision To Make the Rule Effective
Upon Publication
The Department has determined that
this rule should be effective upon
publication because it relieves
restrictions in OHA’s regulations that
are inconsistent with current provisions
of EAJA and because good cause exists
to make the revised regulations
immediately available to parties in
pending cases. 5 U.S.C. 553(d)(1), (3).
Delaying the effective date by 30 days,
as normally required by 5 U.S.C. 553(d),
would mean that current applicants for
an award of attorney fees and expenses
under EAJA might be subject to these
inconsistent restrictions, e.g., in the
types of proceedings covered or in the
maximum rate payable.
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B. Regulatory Planning and Review
(E.O. 12688)
In accordance with the criteria in
Executive Order 12866, the Office of
Management and Budget (OMB) has
determined that this is not a significant
rule. OMB has not reviewed the rule
under Executive Order 12866.
1. This rule will not have an annual
economic effect of $100 million or more
or adversely affect in a material way an
economic sector, productivity,
competition, jobs, the environment,
public health or safety, or State, local,
or tribal governments or communities. A
cost-benefit and economic analysis is
not required. These amended
regulations will have virtually no effect
on the economy because they merely
implement amendments to EAJA that
are already in effect.
2. This rule will not create
inconsistencies with or interfere with
other agencies’ actions, since all
agencies are subject to EAJA and its
amendments.
3. This rule will not materially alter
the budgetary effects of entitlements,
grants, user fees, loan programs, or the
rights and obligations of their recipients.
These regulations have to do only with
the procedures implementing EAJA, not
with entitlements, grants, user fees, loan
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programs, or the rights and obligations
of their recipients.
4. This rule does not raise novel legal
or policy issues. The regulations will
merely implement amendments to EAJA
that are already in effect.
C. Regulatory Flexibility Act
The Department of the Interior
certifies that this rule will not have a
significant economic effect on a
substantial number of small entities as
defined under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). The
regulations merely implement
amendments to EAJA that are already in
effect. A Small Entity Compliance Guide
is not required.
D. Small Business Regulatory
Enforcement Fairness Act
This rule is not a major rule under 5
U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act.
This rule:
1. Will not have an annual effect on
the economy of $100 million or more.
The regulations merely implement
amendments to EAJA that are already in
effect. They should have no effect on the
economy.
2. Will not cause a major increase in
costs or prices for consumers,
individual industries, Federal, state, or
local government agencies, or
geographic regions. Updating OHA’s
procedural regulations implementing
EAJA, based on amendments to that Act,
will not affect costs or prices for
citizens, individual industries, or
government agencies.
3. Will not have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of U.S.-based enterprises to
compete with foreign-based enterprises.
Updating OHA’s procedural regulations
implementing EAJA, based on
amendments to that Act, should have no
effects, adverse or beneficial, on
competition, employment, investment,
productivity, innovation, or the ability
of U.S.-based enterprises to compete
with foreign-based enterprises.
E. Unfunded Mandates Reform Act
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.), we find that:
1. This rule will not have a significant
or unique effect on state, local, or tribal
governments or the private sector.
Updating OHA’s procedural regulations
implementing EAJA, based on
amendments to that Act, will neither
uniquely nor significantly affect these
governments.
2. This rule will not produce an
unfunded Federal mandate of $100
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million or more on state, local, or tribal
governments, in the aggregate, or the
private sector in any year, i.e., it is not
a ‘‘significant regulatory action’’ under
the Unfunded Mandates Reform Act. A
statement containing the information
required by the Unfunded Mandates
Reform Act, 2 U.S.C. 1532 is not
required.
F. Takings (E.O. 12630)
In accordance with Executive Order
12630, we find that the rule will not
have significant takings implications. A
takings implication assessment is not
required. Updating OHA’s procedural
regulations implementing EAJA, based
on amendments to that Act, should have
no effect on property rights.
G. Federalism (E.O. 13132)
In accordance with Executive Order
13132, we find that the rule does not
have sufficient federalism implications
to warrant the preparation of a
Federalism Assessment. There is no
foreseeable effect on states from
updating OHA’s procedural regulations
implementing EAJA, based on
amendments to that Act. A Federalism
Assessment is not required.
H. Civil Justice Reform (E.O. 12988)
In accordance with Executive Order
12988, the Office of the Solicitor has
determined that this rule will not
unduly burden the judicial system and
meets the requirements of sections 3(a)
and 3(b)(2) of the Order. Because these
regulations will merely implement
amendments to EAJA that are already in
effect, they will not burden either
administrative or judicial tribunals.
I. Paperwork Reduction Act
This rule will not require an
information collection from 10 or more
parties, and a submission under the
Paperwork Reduction Act is not
required. An OMB form 83-I has not
been prepared and has not been
approved by the Office of Policy
Analysis. The rule is an administrative
and procedural rule that simply updates
existing procedural regulations
implementing EAJA, based on
amendments to that Act.
J. National Environmental Policy Act
The Department has analyzed this
rule in accordance with the National
Environmental Policy Act of 1969
(NEPA), 42 U.S.C. 4321 et seq., Council
on Environmental Quality (CEQ)
regulations, 40 CFR part 1500, and the
Department of the Interior Departmental
Manual (DM). CEQ regulations, at 40
CFR 1508.4, define a ‘‘categorical
exclusion’’ as a category of actions that
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do not individually or cumulatively
have a significant effect on the human
environment. The regulations further
direct each department to adopt NEPA
procedures, including categorical
exclusions. 40 CFR 1507.3. The
Department has determined that this
rule is categorically excluded from
further environmental analysis under
NEPA in accordance with 516 DM 2,
Appendix 1, which categorically
excludes ‘‘[p]olicies, directives,
regulations, and guidelines that are of
an administrative, financial, legal,
technical, or procedural nature * * *.’’
In addition, the Department has
determined that none of the
extraordinary circumstances listed in
516 DM 2, Appendix 2, applies to the
rule. The rule is an administrative and
procedural rule that simply updates
existing procedural regulations
implementing EAJA, based on
amendments to that Act. Therefore,
neither an environmental assessment
nor an environmental impact statement
under NEPA is required.
Sec.
4.601 What is the purpose of this subpart?
4.602 What definitions apply to this
subpart?
4.603 What proceedings are covered by this
subpart?
4.604 When am I eligible for an award?
4.605 Under what circumstances may I
receive an award?
4.606 What fees and expenses may be
allowed?
K. Government-to-Government
Relationship With Tribes
Procedures for Considering Applications
In accordance with the President’s
memorandum of April 29, 1994,
‘‘Government-to-Government Relations
with Native American Tribal
Governments’’ (59 FR 22951), E.O.
13175, and 512 DM 2, the Department
of the Interior has evaluated potential
effects of these regulations on Federally
recognized Indian tribes and has
determined that there are no potential
effects. These regulations will not affect
Indian trust resources; they will merely
implement amendments to EAJA that
are already in effect.
L. Effects on the Nation’s Energy Supply
(E.O. 13211)
In accordance with Executive Order
13211, we find that this regulation does
not have a significant effect on the
nation’s energy supply, distribution, or
use. Updating OHA’s procedural
regulations implementing EAJA, based
on amendments to that Act, will not
affect energy supply or consumption.
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List of Subjects in 43 CFR Part 4
Administrative practice and
procedure; Claims; Equal access to
justice.
Dated: February 1, 2006.
R. Thomas Weimer,
Assistant Secretary—Policy, Management
and Budget.
For the reasons set forth in the
preamble, part 4, subpart F, of title 43
of the Code of Federal Regulations is
revised as set forth below:
I
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PART 4—DEPARTMENT HEARINGS
AND APPEALS PROCEDURES
Subpart F—Implementation of the
Equal Access to Justice Act in Agency
Proceedings
General Provisions
Information Required from Applicants
4.610 What information must my
application for an award contain?
4.611 What information must I include in
my net worth exhibit?
4.612 What documentation of fees and
expenses must I provide?
4.613 When may I file an application for an
award?
4.620 How must I file and serve
documents?
4.621 When may the Department or other
agency file an answer?
4.622 When may I file a reply?
4.623 When may other parties file
comments?
4.624 When may further proceedings be
held?
4.625 How will my application be decided?
4.626 How will my appeal from a decision
be handled?
4.627 May I seek judicial review of a final
decision?
4.628 How will I obtain payment of an
award?
Authority: 5 U.S.C. 504(c)(1).
General Provisions
§ 4.601 What is the purpose of this
subpart?
(a) The Equal Access to Justice Act
provides for the award of attorney fees
and other expenses to eligible
individuals and entities who are parties
to certain administrative proceedings
(called ‘‘adversary adjudications’’)
before the Department of the Interior.
Under the Act, an eligible party may
receive an award when it prevails over
the Department or other agency, unless
the position of the Department or other
agency was substantially justified or
special circumstances make an award
unjust. The regulations in this subpart
describe the parties eligible for awards
and the proceedings that are covered.
They also explain how to apply for
awards, and the procedures and
standards that the Office of Hearings
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and Appeals will use in ruling on those
applications.
(b) The regulations in this subpart
apply to any application for an award of
attorney fees and other expenses that is:
(1) Pending on February 8, 2006; or
(2) Filed on or after February 8, 2006.
§ 4.602 What definitions apply to this
subpart?
As used in this subpart:
Act means section 203(a)(1) of the
Equal Access to Justice Act, Public Law
96–481, 5 U.S.C. 504, as amended.
Adjudicative officer means the
deciding official(s) who presided at the
adversary adjudication, or any successor
official(s) assigned to decide the
application.
Adversary adjudication means any of
the following:
(1) An adjudication under 5 U.S.C.
554 in which the position of the
Department or other agency is presented
by an attorney or other representative
who enters an appearance and
participates in the proceeding;
(2) An appeal of a decision of a
contracting officer made pursuant to
section 6 of the Contract Disputes Act of
1978 (41 U.S.C. 605) before the Interior
Board of Contract Appeals pursuant to
section 8 of that Act (41 U.S.C. 607);
(3) Any hearing conducted under
section 6103(a) of the Program Fraud
Civil Remedies Act of 1986 (31 U.S.C.
3801 et seq.); or
(4) Any hearing or appeal involving
the Religious Freedom Restoration Act
of 1993 (42 U.S.C. 2000bb et seq.).
Affiliate means:
(1) Any individual, corporation, or
other entity that directly or indirectly
controls or owns a majority of the voting
shares or other interest of the applicant;
or
(2) Any corporation or other entity of
which the applicant directly or
indirectly owns or controls a majority of
the voting shares or other interest.
Demand means the express demand
of the Department or other agency that
led to the adversary adjudication, but
does not include a recitation by the
Department or other agency of the
maximum statutory penalty:
(1) In the administrative complaint; or
(2) Elsewhere when accompanied by
an express demand for a lesser amount.
Department means the Department of
the Interior or the component of the
Department that is a party to the
adversary adjudication (e.g., Bureau of
Land Management).
Final disposition means the date on
which either of the following becomes
final and unappealable, both within the
Department and to the courts:
(1) A decision or order disposing of
the merits of the proceeding; or
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(2) Any other complete resolution of
the proceeding, such as a settlement or
voluntary dismissal.
Other agency means any agency of the
United States or the component of the
agency that is a party to the adversary
adjudication before the Office of
Hearings and Appeals, other than the
Department of the Interior and its
components.
Party means a party as defined in 5
U.S.C. 551(3).
Position of the Department or other
agency means:
(1) The position taken by the
Department or other agency in the
adversary adjudication; and
(2) The action or failure to act by the
Department or other agency upon which
the adversary adjudication is based.
Proceeding means an adversary
adjudication as defined in this section.
You means a party to an adversary
adjudication.
§ 4.603 What proceedings are covered by
this subpart?
(a) The Act applies to adversary
adjudications conducted by the Office of
Hearings and Appeals, including
proceedings to modify, suspend, or
revoke licenses if they are otherwise
adversary adjudications.
(b) The Act does not apply to:
(1) Other hearings and appeals
conducted by the Office of Hearings and
Appeals, even if the Department uses
procedures comparable to those in 5
U.S.C. 554 in such cases;
(2) Any proceeding in which the
Department or other agency may
prescribe a lawful present or future rate;
or
(3) Proceedings to grant or renew
licenses.
(c) If a hearing or appeal includes
both matters covered by the Act and
matters excluded from coverage, any
award made will include only fees and
expenses related to covered issues.
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§ 4.604
When am I eligible for an award?
(a) To be eligible for an award of
attorney fees and other expenses under
the Act, you must:
(1) Be a party to the adversary
adjudication for which you seek an
award; and
(2) Show that you meet all conditions
of eligibility in this section.
(b) You are an eligible applicant if you
are any of the following:
(1) An individual with a net worth of
$2 million or less;
(2) The sole owner of an
unincorporated business who has a net
worth of $7 million or less, including
both personal and business interests,
and 500 or fewer employees;
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(3) A charitable or other tax-exempt
organization described in section
501(c)(3) of the Internal Revenue Code
(26 U.S.C. 501(c)(3)) with 500 or fewer
employees;
(4) A cooperative association as
defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C.
1141j(a)) with 500 or fewer employees;
(5) Any other partnership,
corporation, association, unit of local
government, or organization with a net
worth of $7 million or less and 500 or
fewer employees; or
(6) For purposes of § 4.605(c), a small
entity as defined in 5 U.S.C. 601(6).
(c) For the purpose of eligibility, your
net worth and the number of your
employees must be determined as of the
date the proceeding was initiated.
(1) Your employees include all
persons who regularly perform services
for remuneration under your direction
and control.
(2) Part-time employees must be
included on a proportional basis.
(d) You are considered an
‘‘individual’’ rather than a ‘‘sole owner
of an unincorporated business’’ if:
(1) You own an unincorporated
business; and
(2) The issues on which you prevail
are related primarily to personal
interests rather than to business
interests.
(e) To determine your eligibility, your
net worth and the number of your
employees must be aggregated with the
net worth and the number of employees
of all of your affiliates. However, this
paragraph does not apply if the
adjudicative officer determines that
aggregation would be unjust and
contrary to the purposes of the Act in
light of the actual relationship between
the affiliated entities.
(f) The adjudicative officer may
determine that financial relationships
other than those described in the
definition of ‘‘affiliate’’ in § 4.602
constitute special circumstances that
would make an award unjust.
(g) If you participate in a proceeding
primarily on behalf of one or more other
persons or entities that would be
ineligible, you are not eligible for an
award.
§ 4.605 Under what circumstances may I
receive an award?
(a) You may receive an award for your
fees and expenses in connection with a
proceeding if:
(1) You prevailed in the proceeding or
in a significant and discrete substantive
portion of a proceeding; and
(2) The position of the Department or
other agency over which you prevailed
was not substantially justified. The
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Department or other agency has the
burden of proving that its position was
substantially justified.
(b) An award will be reduced or
denied if you have unduly or
unreasonably protracted the proceeding
or if special circumstances make the
award sought unjust.
(c) This paragraph applies to an
adversary adjudication arising from an
action by the Department or other
agency to enforce compliance with a
statutory or regulatory requirement:
(1) If the demand of the Department
or other agency in the action is
excessive and unreasonable compared
with the adjudicative officer’s decision,
then the adjudicative officer must award
you your fees and expenses related to
defending against the excessive
demand, unless:
(i) You have committed a willful
violation of law;
(ii) You have acted in bad faith; or
(iii) Special circumstances make an
award unjust.
(2) Fees and expenses awarded under
this paragraph will be paid only if
appropriations to cover the payment
have been provided in advance.
§ 4.606 What fees and expenses may be
allowed?
(a) If the criteria in §§ 4.603 through
4.605 are met, you may receive an
award under this subpart only for the
fees and expenses of your attorney(s)
and expert witness(es).
(b) The adjudicative officer must base
an award on rates customarily charged
by persons engaged in the business of
acting as attorneys and expert witnesses,
even if the services were made available
to you without charge or at a reduced
rate.
(1) The maximum that can be
awarded for the fee of an attorney is
$125 per hour.
(2) The maximum that can be
awarded for the fee of an expert witness
is the highest rate at which the
Department or other agency pays expert
witnesses with similar expertise.
(3) An award may also include the
reasonable expenses of the attorney or
expert witness as a separate item, if the
attorney or expert witness ordinarily
charges clients separately for those
expenses.
(c) The adjudicative officer may
award only reasonable fees and
expenses under this subpart. In
determining the reasonableness of the
fee for an attorney or expert witness, the
adjudicative officer must consider the
following:
(1) If the attorney or expert witness is
in private practice, his or her customary
fee for similar services;
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(2) If the attorney or expert witness is
your employee, the fully allocated cost
of the services;
(3) The prevailing rate for similar
services in the community in which the
attorney or expert witness ordinarily
performs services;
(4) The time actually spent in
representing you in the proceeding;
(5) The time reasonably spent in light
of the difficulty or complexity of the
issues in the proceeding; and
(6) Any other factors that bear on the
value of the services provided.
(d) The adjudicative officer may
award the reasonable cost of any study,
analysis, engineering report, test,
project, or similar matter prepared on
your behalf to the extent that:
(1) The charge for the service does not
exceed the prevailing rate for similar
services; and
(2) The study or other matter was
necessary for preparation of your case.
Information Required From Applicants
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§ 4.610 What information must my
application for an award contain?
(a) Your application for an award of
fees and expenses under the Act must:
(1) Identify you;
(2) Identify the proceeding for which
an award is sought;
(3) Show that you have prevailed;
(4) Specify the position of the
Department or other agency that you
allege was not substantially justified;
(5) Unless you are an individual, state
the number of your employees and
those of all your affiliates, and describe
the type and purpose of your
organization or business;
(6) State the amount of fees and
expenses for which you seek an award;
(7) Be signed by you or your
authorized officer or attorney;
(8) Contain or be accompanied by a
written verification under oath or under
penalty of perjury that the information
in the application is true and correct;
and
(9) Unless one of the exceptions in
paragraph (b) of this section applies,
include a statement that:
(i) Your net worth does not exceed $2
million, if you are an individual; or
(ii) Your net worth and that of all your
affiliates does not exceed $7 million in
the aggregate, if you are not an
individual.
(b) You do not have to submit the
statement of net worth required by
paragraph (a)(9) of this section if you do
any of the following:
(1) Attach a copy of a ruling by the
Internal Revenue Service that you
qualify as a tax-exempt organization
described in 26 U.S.C. 501(c)(3);
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15:23 Feb 07, 2006
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(2) Attach a statement describing the
basis for your belief that you qualify
under 26 U.S.C. 501(c)(3), if you are a
tax-exempt organization that is not
required to obtain a ruling from the
Internal Revenue Service on your
exempt status;
(3) State that you are a cooperative
association as defined in section 15(a) of
the Agricultural Marketing Act (12
U.S.C. 1141j(a)); or
(4) Seek fees and expenses under
§ 4.605(c) and provide information
demonstrating that you qualify as a
small entity under 5 U.S.C. 601.
(c) You may also include in your
application any other matters that you
wish the adjudicative officer to consider
in determining whether and in what
amount an award should be made.
§ 4.611 What information must I include in
my net worth exhibit?
(a) Unless you meet one of the criteria
in § 4.610(b), you must file with your
application a net worth exhibit that
meets the requirements of this section.
The adjudicative officer may also
require that you file additional
information to determine your eligibility
for an award.
(b) The exhibit must show your net
worth and that of any affiliates when the
proceeding was initiated. The exhibit
may be in any form that:
(1) Provides full disclosure of your
and your affiliates’ assets and liabilities;
and
(2) Is sufficient to determine whether
you qualify under the standards in this
subpart.
(c) Ordinarily, the net worth exhibit
will be included in the public record of
the proceeding. However, if you object
to public disclosure of information in
any portion of the exhibit and believe
there are legal grounds for withholding
it from disclosure, you may submit that
portion of the exhibit directly to the
adjudicative officer in a sealed envelope
labeled ‘‘Confidential Financial
Information,’’ accompanied by a motion
to withhold the information from public
disclosure.
(1) The motion must describe the
information sought to be withheld and
explain, in detail:
(i) Why it falls within one or more of
the exemptions from mandatory
disclosure under the Freedom of
Information Act, 5 U.S.C. 552(b);
(ii) Why public disclosure of the
information would adversely affect you;
and
(iii) Why disclosure is not required in
the public interest.
(2) You must serve the net worth
exhibit and motion on counsel
representing the agency against which
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Fmt 4700
Sfmt 4700
you seek an award, but you are not
required to serve it on any other party
to the proceeding.
(3) If the adjudicative officer finds
that the information should not be
withheld from disclosure, it must be
placed in the public record of the
proceeding. Otherwise, any request to
inspect or copy the exhibit will be
disposed of in accordance with the
Department’s procedures under the
Freedom of Information Act, 43 CFR 2.7
et seq.
§ 4.612 What documentation of fees and
expenses must I provide?
(a) Your application must be
accompanied by full documentation of
the fees and expenses for which you
seek an award, including the cost of any
study, analysis, engineering report, test,
project, or similar matter.
(b) You must submit a separate
itemized statement for each professional
firm or individual whose services are
covered by the application, showing:
(1) The hours spent in connection
with the proceeding by each individual;
(2) A description of the specific
services performed;
(3) The rates at which each fee has
been computed;
(4) Any expenses for which
reimbursement is sought;
(5) The total amount claimed; and
(6) The total amount paid or payable
by you or by any other person or entity
for the services provided.
(c) The adjudicative officer may
require you to provide vouchers,
receipts, logs, or other substantiation for
any fees or expenses claimed, in
accordance with § 4.624.
§ 4.613 When may I file an application for
an award?
(a) You may file an application
whenever you have prevailed in the
proceeding or in a significant and
discrete substantive portion of the
proceeding. You must file the
application no later than 30 days after
the final disposition of the proceeding.
(b) Consideration of an application for
an award must be stayed if:
(1) Any party seeks review or
reconsideration of a decision in a
proceeding in which you believe you
have prevailed; or
(2) The Department or other agency
(or the United States on its behalf)
appeals an adversary adjudication to a
court.
(c) A stay under paragraph (b)(1) of
this section will continue until there has
been a final disposition of the review or
reconsideration of the decision. A stay
under paragraph (b)(2) of this section
will continue until either:
E:\FR\FM\08FER1.SGM
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Federal Register / Vol. 71, No. 26 / Wednesday, February 8, 2006 / Rules and Regulations
(1) A final and unreviewable decision
is rendered by the court on the appeal;
or
(2) The underlying merits of the case
have been finally determined.
record of the proceeding, the
Department or other agency must
include with the answer either
supporting affidavits or a request for
further proceedings under § 4.624.
Procedures for Considering
Applications
§ 4.622
§ 4.620 How must I file and serve
documents?
You must file and serve all documents
related to an application for an award
under this subpart on all other parties
to the proceeding in the same manner as
other pleadings in the proceeding,
except as provided in § 4.611(c) for
confidential information. The
Department or other agency and all
other parties must likewise file and
serve their pleadings and related
documents on you and on each other, in
the same manner as other pleadings in
the proceeding.
rmajette on PROD1PC67 with RULES1
§ 4.621 When may the Department or other
agency file an answer?
(a) Within 30 days after service of an
application, the Department or other
agency against which an award is
sought may file an answer to the
application. However, if consideration
of an application has been stayed under
§ 4.613(b), the answer is due within 30
days after the final disposition of the
review or reconsideration of the
decision.
(1) Except as provided in paragraph
(a)(2) of this section, failure to file an
answer within the 30-day period may be
treated as a consent to the award
requested. In such case, the adjudicative
officer will issue a decision in
accordance with § 4.625 based on the
record before him or her.
(2) Failure to file an answer within
the 30-day period will not be treated as
a consent to the award requested if the
Department or other agency either:
(i) Requests an extension of time for
filing; or
(ii) Files a statement of intent to
negotiate under paragraph (b) of this
section.
(b) If the Department or other agency
and you believe that the issues in the fee
application can be settled, you may
jointly file a statement of intent to
negotiate a settlement. Filing this
statement will extend for an additional
30 days the time for filing an answer,
and the adjudicative officer may grant
further extensions if you and the agency
counsel so request.
(c) The answer must explain in detail
any objections to the award requested
and identify the facts relied on to
support the Department’s or other
agency’s position. If the answer is based
on any alleged facts not already in the
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15:23 Feb 07, 2006
Jkt 208001
When may I file a reply?
Within 15 days after service of an
answer, you may file a reply. If your
reply is based on any alleged facts not
already in the record of the proceeding,
you must include with the reply either
supporting affidavits or a request for
further proceedings under § 4.624.
§ 4.623 When may other parties file
comments?
Any party to a proceeding other than
the applicant and the Department or
other agency may file comments on an
application within 30 days after it is
served or on an answer within 15 days
after it is served. A commenting party
may not participate further in the
proceedings on the application unless
the adjudicative officer determines that
the public interest requires such
participation in order to permit full
exploration of matters raised in the
comments.
§ 4.624
held?
When may further proceedings be
(a) Ordinarily, the determination of an
award will be made on the basis of the
written record. However, the
adjudicative officer may order further
proceedings, which will be held only
when necessary for full and fair
resolution of the issues and will be
conducted as promptly as possible.
(b) The adjudicative officer may order
further proceedings on his or her own
initiative or in response to a request by
you or by the Department or other
agency. A request for further
proceedings under this section must:
(1) Identify the information sought or
the disputed issues; and
(2) Explain why the additional
proceedings are necessary to resolve the
issues.
(c) As to issues other than substantial
justification (such as your eligibility or
substantiation of fees and expenses),
further proceedings under this section
may include an informal conference,
oral argument, additional written
submissions, pertinent discovery, or an
evidentiary hearing.
(d) The adjudicative officer will
determine whether the position of the
Department or other agency was
substantially justified based on the
administrative record of the adversary
adjudication as a whole.
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6369
§ 4.625 How will my application be
decided?
The adjudicative officer must issue a
decision on the application promptly
after completion of proceedings on the
application. The decision must include
written findings and conclusions on all
of the following that are relevant to the
decision:
(a) Your eligibility and status as a
prevailing party;
(b) The amount awarded, and an
explanation of the reasons for any
difference between the amount
requested and the amount awarded;
(c) Whether the position of the
Department or other agency was
substantially justified;
(d) Whether you unduly protracted
the proceedings; and
(e) Whether special circumstances
make an award unjust.
§ 4.626 How will an appeal from a decision
be handled?
(a) If the adjudicative officer is an
administrative law judge, you or the
Department or other agency may appeal
his or her decision on the application to
the appeals board that would have
jurisdiction over an appeal involving
the merits of the proceeding. The appeal
will be subject to the same regulations
and procedures that would apply to an
appeal involving the merits of the
proceeding. The appeals board will
issue the final Departmental or other
agency decision on the application.
(b) If the adjudicative officer is a
panel of appeals board judges, their
decision on the application is final for
the Department or other agency.
§ 4.627 May I seek judicial review of a final
decision?
You may seek judicial review of a
final Departmental or other agency
decision on an award as provided in 5
U.S.C. 504(c)(2).
§ 4.628 How will I obtain payment of an
award?
(a) To obtain payment of an award
against the Department or other agency,
you must submit:
(1) A copy of the final decision
granting the award; and
(2) A certification that no party is
seeking review of the underlying
decision in the United States courts, or
that the process for seeking review of
the award has been completed.
(b) If the award is against the
Department:
(1) You must submit the material
required by paragraph (a) of this section
to the following address:
Director, Office of Financial
Management, Policy, Management and
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Federal Register / Vol. 71, No. 26 / Wednesday, February 8, 2006 / Rules and Regulations
Budget, U.S. Department of the Interior,
Washington, DC 20240.
(2) Payment will be made by
electronic funds transfer whenever
possible. A representative of the
Department will contact you for the
information the Department needs to
process the electronic funds transfer.
(c) If the award is against another
agency, you must submit the material
required by paragraph (a) of this section
to the chief financial officer or other
disbursing official of that agency.
Agency counsel must promptly inform
you of the title and address of the
appropriate official.
(d) The Department or other agency
will pay the amount awarded to you
within 60 days of receiving the material
required by this section.
[FR Doc. 06–1146 Filed 2–7–06; 8:45 am]
BILLING CODE 4310–79–P
NATIONAL FOUNDATION ON THE
ARTS AND THE HUMANITIES
II. Matters of Regulatory Procedure
45 CFR Part 1180
RIN 3137–AA16
Institute of Museum and Library
Services; Technical Amendments To
Reflect the New Authorizing
Legislation of the Institute of Museum
and Library Services
Institute of Museum and
Library Services (IMLS), NFAH.
ACTION: Final rule.
AGENCY:
rmajette on PROD1PC67 with RULES1
SUMMARY: The Institute of Museum and
Library Services has amended its grants
regulations by removing outdated
regulations and making certain
technical amendments to reflect
Congress’ reauthorization of the
Institute of Museum and Library
Services under The Museum and
Library Services Act of 2003. The
amendments also reorganize certain
sections to provide greater clarity for
agency applicants and grantees.
EFFECTIVE DATE: February 2, 2006.
FOR FURTHER INFORMATION CONTACT:
Nancy E. Weiss, General Counsel,
Institute of Museum and Library
Services, 1800 M Street, NW., Ninth
Floor, Washington, DC 20036. E-mail:
nweiss@imls.gov. Telephone: (202) 653–
4787. Facsimile: (202) 653–4625.
SUPPLEMENTARY INFORMATION:
I. Technical Amendments and Removal
of the Institute’s Outdated Regulations
The Institute of Museum and Library
Services herein removes outdated
regulations and makes minor technical
amendments to reflect Congress’
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15:23 Feb 07, 2006
Jkt 208001
reauthorization of the Institute of
Museum and Library Services with The
Museum and Library Services Act of
2003, Public Law 108–81 (September
25, 2003). These revisions are meant to
fulfill the Institute’s responsibility to its
eligible grant applicants by ensuring
that all regulations, policies, and
procedures are up-to-date. The
regulations removed include regulations
relating to programs and requirements
no longer in existence at the Institute as
a result of both agency practice and The
Museum and Library Services Act of
2003. In the interests of economy of
administration, and because all of the
regulations to be removed are outdated
and the technical amendments are
minor, they are included in one
rulemaking vehicle. The proposed rule
was published by the Institute in the
Federal Register on December 14, 2005.
The Institute received no comments
suggesting changes to the text of the
rule.
Regulatory Planning and Review (E.O.
12866)
Under Executive Order 12866, the
Institute must determine whether the
regulatory action is ‘‘significant’’ and
therefore subject to OMB review and the
requirements of the Executive Order.
The Order defines a ‘‘significant
regulatory action’’ as one that is likely
to result in a rule that may: (1) Have an
annual effect on the economy of $100
million or more or adversely affect in a
material way the economy, a sector of
the economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local, or tribal
governments or communities; (2) create
a serious inconsistency or otherwise
interfere with an action taken or
planned by another agency; (3)
materially alter the budgetary impact of
entitlements, grants, user fees, or loan
programs or the rights and obligations of
recipients thereof; or (4) raise novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in the Executive
Order.
The rule removes a number of
outdated regulations and makes
technical amendments to reflect
Congress’ reauthorization of the
Institute of Museum and Library
Services under The Museum and
Library Services Act of 2003, Public
Law 108–81 (September 25, 2003). As
such, it does not impose a compliance
burden on the economy generally or on
any person or entity. Accordingly, this
rule is not a ‘‘significant regulatory
action’’ from an economic standpoint,
PO 00000
Frm 00034
Fmt 4700
Sfmt 4700
and it does not otherwise create any
inconsistencies or budgetary impacts to
any other agency or Federal Program.
Regulatory Flexibility Act
Because this rule removes outdated
regulations and make certain technical
amendments, the Institute has
determined in Regulatory Flexibility Act
(5 U.S.C. 601 et seq.) review that this
rule will not have a significant
economic impact on a substantial
number of small entities because it
simply makes technical amendments
and removes outdated regulations.
Paperwork Reduction Act
This rule is exempt from the
requirements of the Paperwork
Reduction Act, since it removes existing
outdated regulations and makes only
technical amendments to reflect
Congress’ reauthorization of the
Institute of Museum and Library
Services under The Museum and
Library Services Act of 2003, Public
Law 108–81 (September 25, 2003). An
OMB form 83–1 is not required.
Unfunded Mandates Reform Act
For purposes of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
chapter 25, subchapter II), this rule will
not significantly or uniquely affect small
governments and will not result in
increased expenditures by State, local,
and tribal governments, or by the
private sector, of $100 million or more
as adjusted for inflation) in any one
year.
Small Business Regulatory Enforcement
Fairness Act (SBREFA)
This rule is not a major rule under 5
U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act.
This rule:
a. Does not have an annual effect on
the economy of $100 million or more.
b. Will not cause a major increase in
costs or prices for consumers,
individual industries, Federal, State, or
local government agencies, or
geographic regions.
c. Does not have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of U.S.-based enterprises to
compete with foreign-based enterprises.
Takings (E.O. 12630)
In accordance with Executive Order
12630, the rule does not have significant
takings implications. No rights, property
or compensation has been, or will be,
taken. A takings implication assessment
is not required.
E:\FR\FM\08FER1.SGM
08FER1
]]>Agencies
[Federal Register Volume 71, Number 26 (Wednesday, February 8, 2006)]
[Rules and Regulations]
[Pages 6364-6370]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1146]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 4
RIN 1094-AA49
Implementation of the Equal Access to Justice Act in Agency
Proceedings
AGENCY: Office of the Secretary, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Hearings and Appeals (OHA) is amending its
regulations that implement the Equal Access to Justice Act to bring
them up to date with amendments to the statute that have been enacted
since 1983.
DATES: Effective Date: February 8, 2006.
FOR FURTHER INFORMATION CONTACT: Will A. Irwin, Administrative Judge,
Interior Board of Land Appeals, U.S. Department of the Interior, 801 N.
Quincy Street, Suite 300, Arlington, Virginia 22203, Phone 703-235-
3750. Persons who use a telecommunications device for the deaf (TDD)
may call the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
OHA published a proposed rule on October 5, 2005, to update its
regulations that implement the Equal Access to Justice Act (EAJA), 5
U.S.C. 504 (2000). 70 FR 58167-58175 (October 5, 2005). Those
regulations were first promulgated in 1983. 48 FR 17596 (April 25,
1983). A section-by-section analysis of the proposed regulations was
provided. 70 FR 58168-58170 (October 5, 2005).
We received one comment on the proposed rule, from Hobbs, Straus,
Dean & Walker, LLP, on behalf of client Indian tribes and
organizations. It ``applaud[ed]'' the proposed changes and recommended
that they be made applicable to cases pending before OHA on the date
the regulations become effective. We accept this suggestion. Although
we proposed to omit section 4.604 (``Applicability to Department of the
Interior proceedings'') of the 1983 regulations because it is no longer
needed, 70 FR 58169 (October 5, 2005), we did not intend that the 1983
regulations would apply to cases pending when the new regulations
became effective. We have added paragraph (b) to section 4.601 of the
regulations to make our intention explicit that, when the new
regulations become effective, they will apply to any EAJA application
pending then or filed subsequently.
[[Page 6365]]
We explained in the proposed rule that we had omitted any reference
to fees for ``agents'' in section 4.606 because the Department does not
authorize specialized non-attorney practitioners to practice before it.
70 FR 58169 (October 5, 2005). We have added a new paragraph (a) to
section 4.606 to specify that an award is limited to the fees and
expenses of attorneys and expert witnesses.
The regulations are otherwise adopted as proposed.
II. Procedural Requirements
A. Decision To Make the Rule Effective Upon Publication
The Department has determined that this rule should be effective
upon publication because it relieves restrictions in OHA's regulations
that are inconsistent with current provisions of EAJA and because good
cause exists to make the revised regulations immediately available to
parties in pending cases. 5 U.S.C. 553(d)(1), (3). Delaying the
effective date by 30 days, as normally required by 5 U.S.C. 553(d),
would mean that current applicants for an award of attorney fees and
expenses under EAJA might be subject to these inconsistent
restrictions, e.g., in the types of proceedings covered or in the
maximum rate payable.
B. Regulatory Planning and Review (E.O. 12688)
In accordance with the criteria in Executive Order 12866, the
Office of Management and Budget (OMB) has determined that this is not a
significant rule. OMB has not reviewed the rule under Executive Order
12866.
1. This rule will not have an annual economic effect of $100
million or more or adversely affect in a material way an economic
sector, productivity, competition, jobs, the environment, public health
or safety, or State, local, or tribal governments or communities. A
cost-benefit and economic analysis is not required. These amended
regulations will have virtually no effect on the economy because they
merely implement amendments to EAJA that are already in effect.
2. This rule will not create inconsistencies with or interfere with
other agencies' actions, since all agencies are subject to EAJA and its
amendments.
3. This rule will not materially alter the budgetary effects of
entitlements, grants, user fees, loan programs, or the rights and
obligations of their recipients. These regulations have to do only with
the procedures implementing EAJA, not with entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
4. This rule does not raise novel legal or policy issues. The
regulations will merely implement amendments to EAJA that are already
in effect.
C. Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic effect on a substantial number of small
entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
et seq.). The regulations merely implement amendments to EAJA that are
already in effect. A Small Entity Compliance Guide is not required.
D. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
1. Will not have an annual effect on the economy of $100 million or
more. The regulations merely implement amendments to EAJA that are
already in effect. They should have no effect on the economy.
2. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, state, or local government
agencies, or geographic regions. Updating OHA's procedural regulations
implementing EAJA, based on amendments to that Act, will not affect
costs or prices for citizens, individual industries, or government
agencies.
3. Will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Updating OHA's procedural regulations implementing EAJA, based on
amendments to that Act, should have no effects, adverse or beneficial,
on competition, employment, investment, productivity, innovation, or
the ability of U.S.-based enterprises to compete with foreign-based
enterprises.
E. Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we find that:
1. This rule will not have a significant or unique effect on state,
local, or tribal governments or the private sector. Updating OHA's
procedural regulations implementing EAJA, based on amendments to that
Act, will neither uniquely nor significantly affect these governments.
2. This rule will not produce an unfunded Federal mandate of $100
million or more on state, local, or tribal governments, in the
aggregate, or the private sector in any year, i.e., it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. A statement containing the information required by the Unfunded
Mandates Reform Act, 2 U.S.C. 1532 is not required.
F. Takings (E.O. 12630)
In accordance with Executive Order 12630, we find that the rule
will not have significant takings implications. A takings implication
assessment is not required. Updating OHA's procedural regulations
implementing EAJA, based on amendments to that Act, should have no
effect on property rights.
G. Federalism (E.O. 13132)
In accordance with Executive Order 13132, we find that the rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment. There is no foreseeable effect
on states from updating OHA's procedural regulations implementing EAJA,
based on amendments to that Act. A Federalism Assessment is not
required.
H. Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule will not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. Because these regulations will merely implement
amendments to EAJA that are already in effect, they will not burden
either administrative or judicial tribunals.
I. Paperwork Reduction Act
This rule will not require an information collection from 10 or
more parties, and a submission under the Paperwork Reduction Act is not
required. An OMB form 83-I has not been prepared and has not been
approved by the Office of Policy Analysis. The rule is an
administrative and procedural rule that simply updates existing
procedural regulations implementing EAJA, based on amendments to that
Act.
J. National Environmental Policy Act
The Department has analyzed this rule in accordance with the
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et
seq., Council on Environmental Quality (CEQ) regulations, 40 CFR part
1500, and the Department of the Interior Departmental Manual (DM). CEQ
regulations, at 40 CFR 1508.4, define a ``categorical exclusion'' as a
category of actions that
[[Page 6366]]
do not individually or cumulatively have a significant effect on the
human environment. The regulations further direct each department to
adopt NEPA procedures, including categorical exclusions. 40 CFR 1507.3.
The Department has determined that this rule is categorically excluded
from further environmental analysis under NEPA in accordance with 516
DM 2, Appendix 1, which categorically excludes ``[p]olicies,
directives, regulations, and guidelines that are of an administrative,
financial, legal, technical, or procedural nature * * *.'' In addition,
the Department has determined that none of the extraordinary
circumstances listed in 516 DM 2, Appendix 2, applies to the rule. The
rule is an administrative and procedural rule that simply updates
existing procedural regulations implementing EAJA, based on amendments
to that Act. Therefore, neither an environmental assessment nor an
environmental impact statement under NEPA is required.
K. Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, the Department
of the Interior has evaluated potential effects of these regulations on
Federally recognized Indian tribes and has determined that there are no
potential effects. These regulations will not affect Indian trust
resources; they will merely implement amendments to EAJA that are
already in effect.
L. Effects on the Nation's Energy Supply (E.O. 13211)
In accordance with Executive Order 13211, we find that this
regulation does not have a significant effect on the nation's energy
supply, distribution, or use. Updating OHA's procedural regulations
implementing EAJA, based on amendments to that Act, will not affect
energy supply or consumption.
List of Subjects in 43 CFR Part 4
Administrative practice and procedure; Claims; Equal access to
justice.
Dated: February 1, 2006.
R. Thomas Weimer,
Assistant Secretary--Policy, Management and Budget.
0
For the reasons set forth in the preamble, part 4, subpart F, of title
43 of the Code of Federal Regulations is revised as set forth below:
PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES
Subpart F--Implementation of the Equal Access to Justice Act in
Agency Proceedings
General Provisions
Sec.
4.601 What is the purpose of this subpart?
4.602 What definitions apply to this subpart?
4.603 What proceedings are covered by this subpart?
4.604 When am I eligible for an award?
4.605 Under what circumstances may I receive an award?
4.606 What fees and expenses may be allowed?
Information Required from Applicants
4.610 What information must my application for an award contain?
4.611 What information must I include in my net worth exhibit?
4.612 What documentation of fees and expenses must I provide?
4.613 When may I file an application for an award?
Procedures for Considering Applications
4.620 How must I file and serve documents?
4.621 When may the Department or other agency file an answer?
4.622 When may I file a reply?
4.623 When may other parties file comments?
4.624 When may further proceedings be held?
4.625 How will my application be decided?
4.626 How will my appeal from a decision be handled?
4.627 May I seek judicial review of a final decision?
4.628 How will I obtain payment of an award?
Authority: 5 U.S.C. 504(c)(1).
General Provisions
Sec. 4.601 What is the purpose of this subpart?
(a) The Equal Access to Justice Act provides for the award of
attorney fees and other expenses to eligible individuals and entities
who are parties to certain administrative proceedings (called
``adversary adjudications'') before the Department of the Interior.
Under the Act, an eligible party may receive an award when it prevails
over the Department or other agency, unless the position of the
Department or other agency was substantially justified or special
circumstances make an award unjust. The regulations in this subpart
describe the parties eligible for awards and the proceedings that are
covered. They also explain how to apply for awards, and the procedures
and standards that the Office of Hearings and Appeals will use in
ruling on those applications.
(b) The regulations in this subpart apply to any application for an
award of attorney fees and other expenses that is:
(1) Pending on February 8, 2006; or
(2) Filed on or after February 8, 2006.
Sec. 4.602 What definitions apply to this subpart?
As used in this subpart:
Act means section 203(a)(1) of the Equal Access to Justice Act,
Public Law 96-481, 5 U.S.C. 504, as amended.
Adjudicative officer means the deciding official(s) who presided at
the adversary adjudication, or any successor official(s) assigned to
decide the application.
Adversary adjudication means any of the following:
(1) An adjudication under 5 U.S.C. 554 in which the position of the
Department or other agency is presented by an attorney or other
representative who enters an appearance and participates in the
proceeding;
(2) An appeal of a decision of a contracting officer made pursuant
to section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605)
before the Interior Board of Contract Appeals pursuant to section 8 of
that Act (41 U.S.C. 607);
(3) Any hearing conducted under section 6103(a) of the Program
Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.); or
(4) Any hearing or appeal involving the Religious Freedom
Restoration Act of 1993 (42 U.S.C. 2000bb et seq.).
Affiliate means:
(1) Any individual, corporation, or other entity that directly or
indirectly controls or owns a majority of the voting shares or other
interest of the applicant; or
(2) Any corporation or other entity of which the applicant directly
or indirectly owns or controls a majority of the voting shares or other
interest.
Demand means the express demand of the Department or other agency
that led to the adversary adjudication, but does not include a
recitation by the Department or other agency of the maximum statutory
penalty:
(1) In the administrative complaint; or
(2) Elsewhere when accompanied by an express demand for a lesser
amount.
Department means the Department of the Interior or the component of
the Department that is a party to the adversary adjudication (e.g.,
Bureau of Land Management).
Final disposition means the date on which either of the following
becomes final and unappealable, both within the Department and to the
courts:
(1) A decision or order disposing of the merits of the proceeding;
or
[[Page 6367]]
(2) Any other complete resolution of the proceeding, such as a
settlement or voluntary dismissal.
Other agency means any agency of the United States or the component
of the agency that is a party to the adversary adjudication before the
Office of Hearings and Appeals, other than the Department of the
Interior and its components.
Party means a party as defined in 5 U.S.C. 551(3).
Position of the Department or other agency means:
(1) The position taken by the Department or other agency in the
adversary adjudication; and
(2) The action or failure to act by the Department or other agency
upon which the adversary adjudication is based.
Proceeding means an adversary adjudication as defined in this
section.
You means a party to an adversary adjudication.
Sec. 4.603 What proceedings are covered by this subpart?
(a) The Act applies to adversary adjudications conducted by the
Office of Hearings and Appeals, including proceedings to modify,
suspend, or revoke licenses if they are otherwise adversary
adjudications.
(b) The Act does not apply to:
(1) Other hearings and appeals conducted by the Office of Hearings
and Appeals, even if the Department uses procedures comparable to those
in 5 U.S.C. 554 in such cases;
(2) Any proceeding in which the Department or other agency may
prescribe a lawful present or future rate; or
(3) Proceedings to grant or renew licenses.
(c) If a hearing or appeal includes both matters covered by the Act
and matters excluded from coverage, any award made will include only
fees and expenses related to covered issues.
Sec. 4.604 When am I eligible for an award?
(a) To be eligible for an award of attorney fees and other expenses
under the Act, you must:
(1) Be a party to the adversary adjudication for which you seek an
award; and
(2) Show that you meet all conditions of eligibility in this
section.
(b) You are an eligible applicant if you are any of the following:
(1) An individual with a net worth of $2 million or less;
(2) The sole owner of an unincorporated business who has a net
worth of $7 million or less, including both personal and business
interests, and 500 or fewer employees;
(3) A charitable or other tax-exempt organization described in
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3))
with 500 or fewer employees;
(4) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with 500 or fewer
employees;
(5) Any other partnership, corporation, association, unit of local
government, or organization with a net worth of $7 million or less and
500 or fewer employees; or
(6) For purposes of Sec. 4.605(c), a small entity as defined in 5
U.S.C. 601(6).
(c) For the purpose of eligibility, your net worth and the number
of your employees must be determined as of the date the proceeding was
initiated.
(1) Your employees include all persons who regularly perform
services for remuneration under your direction and control.
(2) Part-time employees must be included on a proportional basis.
(d) You are considered an ``individual'' rather than a ``sole owner
of an unincorporated business'' if:
(1) You own an unincorporated business; and
(2) The issues on which you prevail are related primarily to
personal interests rather than to business interests.
(e) To determine your eligibility, your net worth and the number of
your employees must be aggregated with the net worth and the number of
employees of all of your affiliates. However, this paragraph does not
apply if the adjudicative officer determines that aggregation would be
unjust and contrary to the purposes of the Act in light of the actual
relationship between the affiliated entities.
(f) The adjudicative officer may determine that financial
relationships other than those described in the definition of
``affiliate'' in Sec. 4.602 constitute special circumstances that
would make an award unjust.
(g) If you participate in a proceeding primarily on behalf of one
or more other persons or entities that would be ineligible, you are not
eligible for an award.
Sec. 4.605 Under what circumstances may I receive an award?
(a) You may receive an award for your fees and expenses in
connection with a proceeding if:
(1) You prevailed in the proceeding or in a significant and
discrete substantive portion of a proceeding; and
(2) The position of the Department or other agency over which you
prevailed was not substantially justified. The Department or other
agency has the burden of proving that its position was substantially
justified.
(b) An award will be reduced or denied if you have unduly or
unreasonably protracted the proceeding or if special circumstances make
the award sought unjust.
(c) This paragraph applies to an adversary adjudication arising
from an action by the Department or other agency to enforce compliance
with a statutory or regulatory requirement:
(1) If the demand of the Department or other agency in the action
is excessive and unreasonable compared with the adjudicative officer's
decision, then the adjudicative officer must award you your fees and
expenses related to defending against the excessive demand, unless:
(i) You have committed a willful violation of law;
(ii) You have acted in bad faith; or
(iii) Special circumstances make an award unjust.
(2) Fees and expenses awarded under this paragraph will be paid
only if appropriations to cover the payment have been provided in
advance.
Sec. 4.606 What fees and expenses may be allowed?
(a) If the criteria in Sec. Sec. 4.603 through 4.605 are met, you
may receive an award under this subpart only for the fees and expenses
of your attorney(s) and expert witness(es).
(b) The adjudicative officer must base an award on rates
customarily charged by persons engaged in the business of acting as
attorneys and expert witnesses, even if the services were made
available to you without charge or at a reduced rate.
(1) The maximum that can be awarded for the fee of an attorney is
$125 per hour.
(2) The maximum that can be awarded for the fee of an expert
witness is the highest rate at which the Department or other agency
pays expert witnesses with similar expertise.
(3) An award may also include the reasonable expenses of the
attorney or expert witness as a separate item, if the attorney or
expert witness ordinarily charges clients separately for those
expenses.
(c) The adjudicative officer may award only reasonable fees and
expenses under this subpart. In determining the reasonableness of the
fee for an attorney or expert witness, the adjudicative officer must
consider the following:
(1) If the attorney or expert witness is in private practice, his
or her customary fee for similar services;
[[Page 6368]]
(2) If the attorney or expert witness is your employee, the fully
allocated cost of the services;
(3) The prevailing rate for similar services in the community in
which the attorney or expert witness ordinarily performs services;
(4) The time actually spent in representing you in the proceeding;
(5) The time reasonably spent in light of the difficulty or
complexity of the issues in the proceeding; and
(6) Any other factors that bear on the value of the services
provided.
(d) The adjudicative officer may award the reasonable cost of any
study, analysis, engineering report, test, project, or similar matter
prepared on your behalf to the extent that:
(1) The charge for the service does not exceed the prevailing rate
for similar services; and
(2) The study or other matter was necessary for preparation of your
case.
Information Required From Applicants
Sec. 4.610 What information must my application for an award contain?
(a) Your application for an award of fees and expenses under the
Act must:
(1) Identify you;
(2) Identify the proceeding for which an award is sought;
(3) Show that you have prevailed;
(4) Specify the position of the Department or other agency that you
allege was not substantially justified;
(5) Unless you are an individual, state the number of your
employees and those of all your affiliates, and describe the type and
purpose of your organization or business;
(6) State the amount of fees and expenses for which you seek an
award;
(7) Be signed by you or your authorized officer or attorney;
(8) Contain or be accompanied by a written verification under oath
or under penalty of perjury that the information in the application is
true and correct; and
(9) Unless one of the exceptions in paragraph (b) of this section
applies, include a statement that:
(i) Your net worth does not exceed $2 million, if you are an
individual; or
(ii) Your net worth and that of all your affiliates does not exceed
$7 million in the aggregate, if you are not an individual.
(b) You do not have to submit the statement of net worth required
by paragraph (a)(9) of this section if you do any of the following:
(1) Attach a copy of a ruling by the Internal Revenue Service that
you qualify as a tax-exempt organization described in 26 U.S.C.
501(c)(3);
(2) Attach a statement describing the basis for your belief that
you qualify under 26 U.S.C. 501(c)(3), if you are a tax-exempt
organization that is not required to obtain a ruling from the Internal
Revenue Service on your exempt status;
(3) State that you are a cooperative association as defined in
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a));
or
(4) Seek fees and expenses under Sec. 4.605(c) and provide
information demonstrating that you qualify as a small entity under 5
U.S.C. 601.
(c) You may also include in your application any other matters that
you wish the adjudicative officer to consider in determining whether
and in what amount an award should be made.
Sec. 4.611 What information must I include in my net worth exhibit?
(a) Unless you meet one of the criteria in Sec. 4.610(b), you must
file with your application a net worth exhibit that meets the
requirements of this section. The adjudicative officer may also require
that you file additional information to determine your eligibility for
an award.
(b) The exhibit must show your net worth and that of any affiliates
when the proceeding was initiated. The exhibit may be in any form that:
(1) Provides full disclosure of your and your affiliates' assets
and liabilities; and
(2) Is sufficient to determine whether you qualify under the
standards in this subpart.
(c) Ordinarily, the net worth exhibit will be included in the
public record of the proceeding. However, if you object to public
disclosure of information in any portion of the exhibit and believe
there are legal grounds for withholding it from disclosure, you may
submit that portion of the exhibit directly to the adjudicative officer
in a sealed envelope labeled ``Confidential Financial Information,''
accompanied by a motion to withhold the information from public
disclosure.
(1) The motion must describe the information sought to be withheld
and explain, in detail:
(i) Why it falls within one or more of the exemptions from
mandatory disclosure under the Freedom of Information Act, 5 U.S.C.
552(b);
(ii) Why public disclosure of the information would adversely
affect you; and
(iii) Why disclosure is not required in the public interest.
(2) You must serve the net worth exhibit and motion on counsel
representing the agency against which you seek an award, but you are
not required to serve it on any other party to the proceeding.
(3) If the adjudicative officer finds that the information should
not be withheld from disclosure, it must be placed in the public record
of the proceeding. Otherwise, any request to inspect or copy the
exhibit will be disposed of in accordance with the Department's
procedures under the Freedom of Information Act, 43 CFR 2.7 et seq.
Sec. 4.612 What documentation of fees and expenses must I provide?
(a) Your application must be accompanied by full documentation of
the fees and expenses for which you seek an award, including the cost
of any study, analysis, engineering report, test, project, or similar
matter.
(b) You must submit a separate itemized statement for each
professional firm or individual whose services are covered by the
application, showing:
(1) The hours spent in connection with the proceeding by each
individual;
(2) A description of the specific services performed;
(3) The rates at which each fee has been computed;
(4) Any expenses for which reimbursement is sought;
(5) The total amount claimed; and
(6) The total amount paid or payable by you or by any other person
or entity for the services provided.
(c) The adjudicative officer may require you to provide vouchers,
receipts, logs, or other substantiation for any fees or expenses
claimed, in accordance with Sec. 4.624.
Sec. 4.613 When may I file an application for an award?
(a) You may file an application whenever you have prevailed in the
proceeding or in a significant and discrete substantive portion of the
proceeding. You must file the application no later than 30 days after
the final disposition of the proceeding.
(b) Consideration of an application for an award must be stayed if:
(1) Any party seeks review or reconsideration of a decision in a
proceeding in which you believe you have prevailed; or
(2) The Department or other agency (or the United States on its
behalf) appeals an adversary adjudication to a court.
(c) A stay under paragraph (b)(1) of this section will continue
until there has been a final disposition of the review or
reconsideration of the decision. A stay under paragraph (b)(2) of this
section will continue until either:
[[Page 6369]]
(1) A final and unreviewable decision is rendered by the court on
the appeal; or
(2) The underlying merits of the case have been finally determined.
Procedures for Considering Applications
Sec. 4.620 How must I file and serve documents?
You must file and serve all documents related to an application for
an award under this subpart on all other parties to the proceeding in
the same manner as other pleadings in the proceeding, except as
provided in Sec. 4.611(c) for confidential information. The Department
or other agency and all other parties must likewise file and serve
their pleadings and related documents on you and on each other, in the
same manner as other pleadings in the proceeding.
Sec. 4.621 When may the Department or other agency file an answer?
(a) Within 30 days after service of an application, the Department
or other agency against which an award is sought may file an answer to
the application. However, if consideration of an application has been
stayed under Sec. 4.613(b), the answer is due within 30 days after the
final disposition of the review or reconsideration of the decision.
(1) Except as provided in paragraph (a)(2) of this section, failure
to file an answer within the 30-day period may be treated as a consent
to the award requested. In such case, the adjudicative officer will
issue a decision in accordance with Sec. 4.625 based on the record
before him or her.
(2) Failure to file an answer within the 30-day period will not be
treated as a consent to the award requested if the Department or other
agency either:
(i) Requests an extension of time for filing; or
(ii) Files a statement of intent to negotiate under paragraph (b)
of this section.
(b) If the Department or other agency and you believe that the
issues in the fee application can be settled, you may jointly file a
statement of intent to negotiate a settlement. Filing this statement
will extend for an additional 30 days the time for filing an answer,
and the adjudicative officer may grant further extensions if you and
the agency counsel so request.
(c) The answer must explain in detail any objections to the award
requested and identify the facts relied on to support the Department's
or other agency's position. If the answer is based on any alleged facts
not already in the record of the proceeding, the Department or other
agency must include with the answer either supporting affidavits or a
request for further proceedings under Sec. 4.624.
Sec. 4.622 When may I file a reply?
Within 15 days after service of an answer, you may file a reply. If
your reply is based on any alleged facts not already in the record of
the proceeding, you must include with the reply either supporting
affidavits or a request for further proceedings under Sec. 4.624.
Sec. 4.623 When may other parties file comments?
Any party to a proceeding other than the applicant and the
Department or other agency may file comments on an application within
30 days after it is served or on an answer within 15 days after it is
served. A commenting party may not participate further in the
proceedings on the application unless the adjudicative officer
determines that the public interest requires such participation in
order to permit full exploration of matters raised in the comments.
Sec. 4.624 When may further proceedings be held?
(a) Ordinarily, the determination of an award will be made on the
basis of the written record. However, the adjudicative officer may
order further proceedings, which will be held only when necessary for
full and fair resolution of the issues and will be conducted as
promptly as possible.
(b) The adjudicative officer may order further proceedings on his
or her own initiative or in response to a request by you or by the
Department or other agency. A request for further proceedings under
this section must:
(1) Identify the information sought or the disputed issues; and
(2) Explain why the additional proceedings are necessary to resolve
the issues.
(c) As to issues other than substantial justification (such as your
eligibility or substantiation of fees and expenses), further
proceedings under this section may include an informal conference, oral
argument, additional written submissions, pertinent discovery, or an
evidentiary hearing.
(d) The adjudicative officer will determine whether the position of
the Department or other agency was substantially justified based on the
administrative record of the adversary adjudication as a whole.
Sec. 4.625 How will my application be decided?
The adjudicative officer must issue a decision on the application
promptly after completion of proceedings on the application. The
decision must include written findings and conclusions on all of the
following that are relevant to the decision:
(a) Your eligibility and status as a prevailing party;
(b) The amount awarded, and an explanation of the reasons for any
difference between the amount requested and the amount awarded;
(c) Whether the position of the Department or other agency was
substantially justified;
(d) Whether you unduly protracted the proceedings; and
(e) Whether special circumstances make an award unjust.
Sec. 4.626 How will an appeal from a decision be handled?
(a) If the adjudicative officer is an administrative law judge, you
or the Department or other agency may appeal his or her decision on the
application to the appeals board that would have jurisdiction over an
appeal involving the merits of the proceeding. The appeal will be
subject to the same regulations and procedures that would apply to an
appeal involving the merits of the proceeding. The appeals board will
issue the final Departmental or other agency decision on the
application.
(b) If the adjudicative officer is a panel of appeals board judges,
their decision on the application is final for the Department or other
agency.
Sec. 4.627 May I seek judicial review of a final decision?
You may seek judicial review of a final Departmental or other
agency decision on an award as provided in 5 U.S.C. 504(c)(2).
Sec. 4.628 How will I obtain payment of an award?
(a) To obtain payment of an award against the Department or other
agency, you must submit:
(1) A copy of the final decision granting the award; and
(2) A certification that no party is seeking review of the
underlying decision in the United States courts, or that the process
for seeking review of the award has been completed.
(b) If the award is against the Department:
(1) You must submit the material required by paragraph (a) of this
section to the following address:
Director, Office of Financial Management, Policy, Management and
[[Page 6370]]
Budget, U.S. Department of the Interior, Washington, DC 20240.
(2) Payment will be made by electronic funds transfer whenever
possible. A representative of the Department will contact you for the
information the Department needs to process the electronic funds
transfer.
(c) If the award is against another agency, you must submit the
material required by paragraph (a) of this section to the chief
financial officer or other disbursing official of that agency. Agency
counsel must promptly inform you of the title and address of the
appropriate official.
(d) The Department or other agency will pay the amount awarded to
you within 60 days of receiving the material required by this section.
[FR Doc. 06-1146 Filed 2-7-06; 8:45 am]
BILLING CODE 4310-79-P
