National Appeals Division Rules of Procedure; Applicability of Equal Access to Justice Act and Administrative Procedure Act, 57401-57402 [E9-26747]

Download as PDF 57401 Rules and Regulations Federal Register Vol. 74, No. 214 Friday, November 6, 2009 This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week. DEPARTMENT OF AGRICULTURE Office of the Secretary 7 CFR Part 11 RIN 0503–AA38 National Appeals Division Rules of Procedure; Applicability of Equal Access to Justice Act and Administrative Procedure Act Office of the Secretary, National Appeals Division, USDA. ACTION: Final rule. AGENCY: SUMMARY: This document amends the National Appeals Division rules of procedure to reflect recent judicial rulings regarding the applicability of the Equal Access to Justice Act and the Administrative Procedure Act to National Appeals Division administrative proceedings. The rules of procedure are amended to provide that the provisions of the Administrative Procedure Act generally applicable to agency adjudications, and the Equal Access to Justice Act and its implementing regulations, shall apply to National Appeals Division hearings. DATES: Effective Date: November 6, 2009. srobinson on DSKHWCL6B1PROD with RULES FOR FURTHER INFORMATION CONTACT: Adam J. Hermann, Attorney-Advisor, General Law Division, Office of the General Counsel, United States Department of Agriculture, STOP 1415, 1400 Independence Ave., SW., Washington, DC 20250, (202) 720–5565. SUPPLEMENTARY INFORMATION: USDA is amending the National Appeals Division (‘‘NAD’’) rules of procedure in 7 CFR part 11, subpart A, to reflect judicial rulings in four Circuits regarding the applicability of the Equal Access to Justice Act (‘‘EAJA’’), 5 U.S.C. 504, and by extension, the Administrative Procedure Act (‘‘APA’’), to NAD proceedings. VerDate Nov<24>2008 16:06 Nov 05, 2009 Jkt 220001 Prior to publication of this final rule, the position of USDA was that EAJA (5 U.S.C. 504) and the provisions of the APA applicable to formal adjudicative proceedings (5 U.S.C. 554–557) did not apply to NAD proceedings except where required by judicial ruling. See 64 FR 33367, 33368 (June 23, 1999). At that time, only one U.S. Circuit Court of Appeals—the 8th—had issued a decision holding that EAJA applies to NAD proceedings. See Lane v. USDA, 120 F.3d 106 (8th Cir. 1997). Since then, the 7th and 9th Circuits also have issued decisions holding that EAJA applies to NAD proceedings. See Five Points Rd. Joint Venture v. Johanns, 542 F.3d 1121 (7th Cir. 2008); Aageson Grain & Cattle v. USDA, 500 F.3d 1038 (9th Cir. 2007). Additionally, on May 1, 2009, a U.S. District Court in the 5th Circuit entered a decision following the 7th, 8th, and 9th Circuits. See Rosenbaum v. USDA, No. 07–02808 (S.D. Tex. May 1, 2009) (final judgment). In light of the decisions in these four Circuits, USDA is no longer maintaining the position that the APA and EAJA do not apply to NAD proceedings except where required by judicial ruling. Effective immediately, EAJA and USDA’s implementing regulations at 7 CFR part 1, subpart J, will apply universally to NAD proceedings regardless of the judicial Circuit in which the proceeding arises. While the four decisions cited above addressed only the issue of whether EAJA applies to NAD proceedings, the applicability of EAJA is derivative of the applicability of the APA and thus, by extension, the court rulings apply to the applicability of the APA as well. Therefore, the provisions of the APA generally applicable to agency adjudications (5 U.S.C. 554–557) also will apply generally to NAD proceedings regardless of the judicial Circuit in which the proceeding arises. However, it is the position of USDA that the applicability of the APA does not require any changes to existing NAD administrative procedures. This final rule applies to proceedings conducted under 7 CFR part 11, except for proceedings under § 11.5 (USDA agency informal reviews of adverse decisions) and § 11.6(a) (NAD Director reviews of USDA agency determinations of appealability). PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 Classification This rule relates to internal agency management. Accordingly, pursuant to 5 U.S.C. 553, notice of proposed rulemaking and opportunity for comment are not required, and this rule may be made effective less than 30 days after publication in the Federal Register. This rule also is exempt from the provisions of Executive Order 12866. This action is not a rule as defined by the Regulatory Flexibility Act, Public Law 96–354, and the Small Business Regulatory Fairness Enforcement Act, 5 U.S.C. 801 et seq., and thus is exempt from the provisions of those Acts. This rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). List of Subjects in 7 CFR Part 11 Administrative practice and procedure, Agriculture, Agricultural commodities, Crop insurance, Ex parte communications, Farmers, Federal aid programs, Guaranteed loans, Insured loans, Loan programs, Price support programs, Soil conservation. ■ Accordingly, Title 7 of the Code of Federal Regulations is amended as set forth below: PART 11—NATIONAL APPEALS DIVISION 1. The authority for part 11 continues to read as follows: ■ Authority: 5 U.S.C. 301; Title II, Subtitle H, Public Law 103–354, 108 Stat. 3228 (7 U.S.C. 6991 et seq.); Reorganization Plan No. 2 of 1953 (5 U.S.C. App.). Subpart A—National Appeals Division Rules of Procedure 2. Amend § 11.4 by revising the section heading and adding paragraph (a), to read as follows: ■ § 11.4 Other laws and regulations. (a) The provisions of the Administrative Procedure Act generally applicable to agency adjudications (5 U.S.C. 554–557), and the Equal Access to Justice Act (5 U.S.C. 504) and its implementing regulations at 7 CFR part 1, subpart J, shall apply to proceedings under this part except for proceedings under § 11.5 and § 11.6(a). * * * * * E:\FR\FM\06NOR1.SGM 06NOR1 57402 Federal Register / Vol. 74, No. 214 / Friday, November 6, 2009 / Rules and Regulations Done at Washington, DC, this 2nd day of November 2009. Thomas J. Vilsack, Secretary of Agriculture. [FR Doc. E9–26747 Filed 11–5–09; 8:45 am] BILLING CODE 3410–90–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA–2009–1024; Directorate Identifier 2009–NM–182–AD; Amendment 39–16083; AD 2008–05–18 R1] RIN 2120–AA64 Airworthiness Directives; Fokker Model F.27 Mark 050, 200, 300, 400, 500, 600, and 700 Airplanes Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule; request for comments. AGENCY: Examining the AD Docket SUMMARY: We are adopting a new airworthiness directive (AD) for the products listed above that would revise an existing AD. This AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Subsequent to accidents involving Fuel Tank System explosions in flight * * * and on ground, * * * Special Federal Aviation Regulation 88 (SFAR88) * * * required a safety review of the aircraft Fuel Tank System * * *. * * * * * srobinson on DSKHWCL6B1PROD with RULES Fuel Airworthiness Limitations are items arising from a systems safety analysis that have been shown to have failure mode(s) associated with an ‘unsafe condition’ * * *. These are identified in Failure Conditions for which an unacceptable probability of ignition risk could exist if specific tasks and/or practices are not performed in accordance with the manufacturers’ requirements. This AD requires actions that are intended to address the unsafe condition described in the MCAI. DATES: This AD becomes effective November 23, 2009. On April 16, 2008 (73 FR 13071, March 12, 2008), the Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD. We must receive comments on this AD by December 21, 2009. ADDRESSES: You may send comments by any of the following methods: VerDate Nov<24>2008 16:06 Nov 05, 2009 Jkt 220001 • Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the instructions for submitting comments. • Fax: (202) 493–2251. • Mail: U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • Hand Delivery: U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 231, 2150 AE Nieuw-Vennep, the Netherlands; telephone +31 (0)252–627– 350; fax +31 (0)252–627–211; e-mail technicalservices.fokkerservices@ stork.com; Internet https:// www.myfokkerfleet.com. You may examine the AD docket on the Internet at https:// www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647–5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Tom Rodriguez, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057–3356; telephone (425) 227–1137; fax (425) 227–1149. SUPPLEMENTARY INFORMATION: Discussion On February 28, 2008, we issued AD 2008–05–18, Amendment 39–15412 (73 FR 13071, March 12, 2008). That AD applied to certain Fokker Model F.27 Mark 050, 200, 300, 400, 500, 600, and 700 airplanes. That AD required revising the Airworthiness Limitations Section (ALS) of the Instructions for Continued Airworthiness to incorporate new limitations for fuel tank systems. Critical design configuration control limitations (CDCCLs) are limitation requirements to preserve a critical ignition source prevention feature of the fuel tank system design that is necessary to prevent the occurrence of an unsafe condition. The purpose of a CDCCL is to provide instruction to retain the PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 critical ignition source prevention feature during configuration change that may be caused by alterations, repairs, or maintenance actions. A CDCCL is not a periodic inspection. Since we issued that AD, we have determined that it is necessary to clarify the AD’s intended effect on spare and on-airplane fuel tank system components, regarding the use of maintenance manuals and instructions for continued airworthiness. Section 91.403(c) of the Federal Aviation Regulations (14 CFR 91.403(c)) specifies the following: No person may operate an aircraft for which a manufacturer’s maintenance manual or instructions for continued airworthiness has been issued that contains an airworthiness limitation section unless the mandatory * * * procedures * * * have been complied with. Some operators have questioned whether existing components affected by the new CDCCLs must be reworked. We did not intend for the AD to retroactively require rework of components that had been maintained using acceptable methods before the effective date of the AD. Owners and operators of the affected airplanes therefore are not required to rework affected components identified as airworthy or installed on the affected airplanes before the required revisions of the ALS. But once the CDCCLs are incorporated into the ALS, future maintenance actions on components must be done in accordance with those CDCCLs. FAA’s Determination This product has been approved by the aviation authority of another country, and is approved for operation in the United States. This new AD retains the requirements of the existing AD, and adds a new note to clarify the intended effect of the AD on spare and on-airplane fuel tank system components. We have renumbered subsequent notes accordingly. Explanation of Additional Change to AD AD 2008–05–18 allowed the use of alternative inspections, inspection intervals, or CDCCLs if they are part of a later revision of a Fokker 50/60 Fuel Airworthiness Limitation Items (ALI) and CDCCL Report SE–671, Issue 2, dated December 1, 2006; or Fokker Service Bulletin SBF27–28–070, Revision 1, dated January 8, 2008. That provision has been removed from this AD. Allowing the use of ‘‘a later revision’’ of a specific service document violates Office of the Federal Register policies for approving materials that are E:\FR\FM\06NOR1.SGM 06NOR1

Agencies

[Federal Register Volume 74, Number 214 (Friday, November 6, 2009)]
[Rules and Regulations]
[Pages 57401-57402]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-26747]



========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.

========================================================================


Federal Register / Vol. 74, No. 214 / Friday, November 6, 2009 / 
Rules and Regulations

[[Page 57401]]



DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Part 11

RIN 0503-AA38


National Appeals Division Rules of Procedure; Applicability of 
Equal Access to Justice Act and Administrative Procedure Act

AGENCY: Office of the Secretary, National Appeals Division, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This document amends the National Appeals Division rules of 
procedure to reflect recent judicial rulings regarding the 
applicability of the Equal Access to Justice Act and the Administrative 
Procedure Act to National Appeals Division administrative proceedings. 
The rules of procedure are amended to provide that the provisions of 
the Administrative Procedure Act generally applicable to agency 
adjudications, and the Equal Access to Justice Act and its implementing 
regulations, shall apply to National Appeals Division hearings.

DATES: Effective Date: November 6, 2009.

FOR FURTHER INFORMATION CONTACT: Adam J. Hermann, Attorney-Advisor, 
General Law Division, Office of the General Counsel, United States 
Department of Agriculture, STOP 1415, 1400 Independence Ave., SW., 
Washington, DC 20250, (202) 720-5565.

SUPPLEMENTARY INFORMATION: USDA is amending the National Appeals 
Division (``NAD'') rules of procedure in 7 CFR part 11, subpart A, to 
reflect judicial rulings in four Circuits regarding the applicability 
of the Equal Access to Justice Act (``EAJA''), 5 U.S.C. 504, and by 
extension, the Administrative Procedure Act (``APA''), to NAD 
proceedings.
    Prior to publication of this final rule, the position of USDA was 
that EAJA (5 U.S.C. 504) and the provisions of the APA applicable to 
formal adjudicative proceedings (5 U.S.C. 554-557) did not apply to NAD 
proceedings except where required by judicial ruling. See 64 FR 33367, 
33368 (June 23, 1999). At that time, only one U.S. Circuit Court of 
Appeals--the 8th--had issued a decision holding that EAJA applies to 
NAD proceedings. See Lane v. USDA, 120 F.3d 106 (8th Cir. 1997).
    Since then, the 7th and 9th Circuits also have issued decisions 
holding that EAJA applies to NAD proceedings. See Five Points Rd. Joint 
Venture v. Johanns, 542 F.3d 1121 (7th Cir. 2008); Aageson Grain & 
Cattle v. USDA, 500 F.3d 1038 (9th Cir. 2007). Additionally, on May 1, 
2009, a U.S. District Court in the 5th Circuit entered a decision 
following the 7th, 8th, and 9th Circuits. See Rosenbaum v. USDA, No. 
07-02808 (S.D. Tex. May 1, 2009) (final judgment).
    In light of the decisions in these four Circuits, USDA is no longer 
maintaining the position that the APA and EAJA do not apply to NAD 
proceedings except where required by judicial ruling. Effective 
immediately, EAJA and USDA's implementing regulations at 7 CFR part 1, 
subpart J, will apply universally to NAD proceedings regardless of the 
judicial Circuit in which the proceeding arises. While the four 
decisions cited above addressed only the issue of whether EAJA applies 
to NAD proceedings, the applicability of EAJA is derivative of the 
applicability of the APA and thus, by extension, the court rulings 
apply to the applicability of the APA as well. Therefore, the 
provisions of the APA generally applicable to agency adjudications (5 
U.S.C. 554-557) also will apply generally to NAD proceedings regardless 
of the judicial Circuit in which the proceeding arises. However, it is 
the position of USDA that the applicability of the APA does not require 
any changes to existing NAD administrative procedures.
    This final rule applies to proceedings conducted under 7 CFR part 
11, except for proceedings under Sec.  11.5 (USDA agency informal 
reviews of adverse decisions) and Sec.  11.6(a) (NAD Director reviews 
of USDA agency determinations of appealability).

Classification

    This rule relates to internal agency management. Accordingly, 
pursuant to 5 U.S.C. 553, notice of proposed rulemaking and opportunity 
for comment are not required, and this rule may be made effective less 
than 30 days after publication in the Federal Register. This rule also 
is exempt from the provisions of Executive Order 12866. This action is 
not a rule as defined by the Regulatory Flexibility Act, Public Law 96-
354, and the Small Business Regulatory Fairness Enforcement Act, 5 
U.S.C. 801 et seq., and thus is exempt from the provisions of those 
Acts. This rule contains no information collection or recordkeeping 
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

List of Subjects in 7 CFR Part 11

    Administrative practice and procedure, Agriculture, Agricultural 
commodities, Crop insurance, Ex parte communications, Farmers, Federal 
aid programs, Guaranteed loans, Insured loans, Loan programs, Price 
support programs, Soil conservation.

0
Accordingly, Title 7 of the Code of Federal Regulations is amended as 
set forth below:

PART 11--NATIONAL APPEALS DIVISION

0
1. The authority for part 11 continues to read as follows:

    Authority: 5 U.S.C. 301; Title II, Subtitle H, Public Law 103-
354, 108 Stat. 3228 (7 U.S.C. 6991 et seq.); Reorganization Plan No. 
2 of 1953 (5 U.S.C. App.).

Subpart A--National Appeals Division Rules of Procedure

0
2. Amend Sec.  11.4 by revising the section heading and adding 
paragraph (a), to read as follows:


Sec.  11.4  Other laws and regulations.

    (a) The provisions of the Administrative Procedure Act generally 
applicable to agency adjudications (5 U.S.C. 554-557), and the Equal 
Access to Justice Act (5 U.S.C. 504) and its implementing regulations 
at 7 CFR part 1, subpart J, shall apply to proceedings under this part 
except for proceedings under Sec.  11.5 and Sec.  11.6(a).
* * * * *


[[Page 57402]]


    Done at Washington, DC, this 2nd day of November 2009.
Thomas J. Vilsack,
Secretary of Agriculture.
[FR Doc. E9-26747 Filed 11-5-09; 8:45 am]
BILLING CODE 3410-90-P

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.