Procedures Relating to Awards Under the Equal Access to Justice Act, 11667-11668 [2011-4423]
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11667
Rules and Regulations
Federal Register
Vol. 76, No. 42
Thursday, March 3, 2011
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 1
RIN 0503–AA42
Procedures Relating to Awards Under
the Equal Access to Justice Act
Office of the Secretary, USDA.
Final rule.
AGENCY:
ACTION:
The U.S. Department of
Agriculture (USDA) is amending its
regulations implementing the Equal
Access to Justice Act (EAJA) by raising
the maximum hourly attorney fees rate
from $125.00 to $150.00 for covered
proceedings initiated on and after the
effective date of this final rule.
DATES: This final rule is effective March
3, 2011.
FOR FURTHER INFORMATION CONTACT:
Adam J. Hermann, Esq., Attorney
Advisor, General Law Division, Office of
the General Counsel, South Building
Room 3311, USDA, 1400 Independence
Ave., SW., Washington, DC 20250;
Voice: (202) 720–9425; Email:
adam.hermann@ogc.usda.gov.
SUMMARY:
On July
30, 2010, USDA published a proposed
rule (75 FR 44928, July 30, 2010) to
amend its regulations implementing the
Equal Access to Justice Act (EAJA), 5
U.S.C. 504, to raise the maximum
hourly attorney fees rate set forth in 7
CFR 1.186 from $125.00 to $150.00 for
proceedings initiated on and after the
effective date of the publication of this
final rule. EAJA, 5 U.S.C. 504, provides
to certain parties in adversary agency
adjudications reimbursement for
attorney fees and other expenses under
limited circumstances. The proposed
rule was issued in response to a Petition
for Rulemaking (PFR) received by USDA
on September 29, 2008, filed by Public
Citizen Litigation Group, Five Points
erowe on DSK5CLS3C1PROD with RULES
SUPPLEMENTARY INFORMATION:
VerDate Mar<15>2010
13:37 Mar 02, 2011
Jkt 223001
Road Joint Venture, and Charles Brown,
Esq., under the provisions of 7 CFR
1.187 and 1.28. The PFR sought an
increase in the maximum attorney fees
payable based on the U.S. Department of
Labor Consumer Price All-Items Index
for All Urban Consumers. In brief, the
petitioners sought an automatic
escalator clause using 1996 as the base
year and $125.00 per hour as the base
year maximum fee, with the new
amount applying to all pending and
future covered proceedings before
USDA.
In the proposed rule, USDA invited
comments, which were due by
September 28, 2010. USDA received two
comments.
Comment: One commenter, citing the
economy, objected to the increase in the
maximum hourly rate from $125.00 to
$150.00 and suggested that the
maximum hourly rate should be
decreased. This commenter also
advocated for the enactment of a law
requiring attorneys to provide twenty
hours per week of ‘‘public service.’’
Response: USDA considered this
comment but is not making any changes
to the proposed rule. In the Small
Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104–
121, Title II, section 231 (1996),
Congress amended EAJA at 5 U.S.C.
504(b)(1)(A) by raising the hourly
maximum attorney fees rate from $75.00
to $125.00. Because inflation has eroded
the value of the $125 per hour fee set
by Congress in 1996, USDA does not
believe it would be appropriate to
decrease the $125 per hour rate. Rather,
USDA has determined that an increase
of $25.00—from $125.00 to $150.00—is
appropriate. Finally, the enactment of
laws is a function of the Congress and
is, therefore, outside the purview of this
regulation.
Comment: One commenter objected to
any increase in the maximum hourly
rate until ‘‘a more detailed process of
documentation, as well as a
comprehensive review of past usage of
the EAJA’’ is undertaken. The
commenter argued that attorney fee
reimbursements under EAJA ‘‘have been
recovered and utilized primarily by
environmental groups,’’ and that such
groups are ‘‘clearly receiving a
disproportionate amount of funding
from EAJA.’’ The commenter suggested
that attorneys representing industry
groups are disadvantaged because of
PO 00000
Frm 00001
Fmt 4700
Sfmt 4700
such disproportionate amount of EAJA
attorney fees reimbursements that are
recovered by environmental groups. In
support of its assertions, the commenter
referred generally to research conducted
by the Budd-Falen Law Offices, L.L.C.,
but does not state whether such research
analyzed the EAJA statute for agency
adjudications (5 U.S.C. 504) or the EAJA
statute applicable in Federal judiciary
proceedings (28 U.S.C. 2412), or both.
Response: USDA considered this
comment but is not making any changes
to the proposed rule. Eligibility for
reimbursement of attorney fees to
prevailing parties in agency adversary
adjudications is determined by statute
(5 U.S.C. 504). If an entity meets the
statutory eligibility requirements and
otherwise complies with the EAJA
procedures as implemented by USDA in
7 CFR part 1, subpart J, an EAJA award
will be made. The mere status of the
entity as an environmental group or an
industry group has no bearing on agency
EAJA determinations. EAJA
determinations in judicial proceedings
are governed by 28 U.S.C. 2412 and are
made by the courts, not the agency. Any
perceived inequities in EAJA
reimbursements across particular
interest groups may be addressed to
Congress as part of the legislative
process. USDA believes that an increase
in the current maximum hourly rate is
appropriate for the reasons stated
previously.
For the reasons stated in the proposed
rule, USDA is raising the hourly fee set
forth in 7 CFR 1.186 from $125.00 to
$150.00, to be applicable to covered
proceedings initiated on and after the
effective date of this final rule.
This action has been reviewed under
Executive Order No. 12866 and has been
determined not to be a ‘‘significant
regulatory action.’’ This final rule will
not create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency; nor will
it materially alter the budgetary impact
of entitlements, grants, user fees, or loan
programs; nor will it have an annual
effect on the economy of $100 million
or more; nor will it adversely affect the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local or Tribal governments or
communities in a material way.
Furthermore, it does not raise a novel
legal or policy issue arising out of legal
E:\FR\FM\03MRR1.SGM
03MRR1
11668
Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Rules and Regulations
mandates, the President’s priorities or
principles set forth in the Executive
Order.
USDA certifies that this final rule will
not have a significant economic impact
on a substantial number of small entities
as defined in the Regulatory Flexibility
Act, Public Law 96–534, as amended
(5 U.S.C. 601 et seq.).
USDA has determined that the
provisions of the Paperwork Reduction
Act, as amended, (44 U.S.C. 3501 et
seq.), do not apply to any collections of
information contained in this final rule
because any such collections of
information are made during the
conduct of administrative action
involving an agency against specific
individuals or entities. 5 CFR
1320.4(a)(2).
List of Subjects in 7 CFR Part 1
circumstances (such as limited
availability of attorneys qualified to
handle certain types of proceedings), the
Department may adopt regulations
providing that attorney fees may be
awarded at a rate higher than $150 per
hour in some or all of the types of
proceedings covered by this part. The
Department will conduct any
rulemaking proceedings for this purpose
under the informal rulemaking
procedures of the Administrative
Procedure Act.
*
*
*
*
*
Thomas J. Vilsack,
Secretary of Agriculture.
[FR Doc. 2011–4423 Filed 3–2–11; 8:45 am]
BILLING CODE 3410–90–P
FEDERAL HOUSING FINANCE BOARD
Administrative practice and
procedure.
Accordingly, Title 7 of the Code of
Federal Regulations is amended as
follows:
12 CFR Part 932
FEDERAL HOUSING FINANCE
AGENCY
PART 1—ADMINISTRATIVE
REGULATIONS
12 CFR Part 1225
1. The authority for part 1 continues
to read as follows:
Minimum Capital
RIN 2590–AA01
■
Authority: 5 U.S.C. 301, unless otherwise
noted.
Subpart J—Procedures Relating to
Awards Under the Equal Access to
Justice Act in Proceedings Before the
Department
2. Amend § 1.186 by revising
paragraph (b) to read as follows:
■
§ 1.186
Allowable fees and expenses.
erowe on DSK5CLS3C1PROD with RULES
*
*
*
*
*
(b) In proceedings commenced on or
after the effective date of this paragraph,
no award for the fee of an attorney or
agent under the rules in this subpart
may exceed $150 per hour. No award to
compensate an expert witness may
exceed the highest rate at which the
Department pays expert witnesses,
which is set out at § 1.150 of this part.
However, an award also may include
the reasonable expenses of the attorney,
agent, or witness as a separate item, if
the attorney, agent, or witness ordinarily
charges clients separately for such
expenses.
*
*
*
*
*
■ 3. Amend § 1.187 by revising
paragraph (a) to read as follows:
§ 1.187 Rulemaking on maximum rates for
attorney fees.
(a) If warranted by an increase in the
cost of living or by special
VerDate Mar<15>2010
15:49 Mar 02, 2011
Jkt 223001
Federal Housing Finance Board
and Federal Housing Finance Agency.
ACTION: Final rule.
AGENCY:
The Federal Housing Finance
Agency (FHFA) is issuing a final rule to
implement a provision of the Federal
Housing Enterprises Financial Safety
and Soundness Act, as amended, that
provides for a temporary increase in the
minimum capital level for the entities
regulated by FHFA—the Federal
National Mortgage Association, the
Federal Home Loan Mortgage
Corporation and the Federal Home Loan
Banks. The final rule establishes
standards for imposing a temporary
increase and for rescinding such an
increase, and a time frame for review of
such an increase.
DATES: This rule is effective April 4,
2011.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Christopher T. Curtis, Senior Deputy
General Counsel,
Christopher.Curtis@fhfa.gov, (202) 414–
8947, or Jamie Schwing, Associate
General Counsel,
Jamie.Schwing@fhfa.gov, (202) 414–
3787, (not toll-free numbers), Federal
Housing Finance Agency, Fourth Floor,
1700 G Street, NW., Washington, DC
20552. The telephone number for the
Telecommunications Device for the Deaf
is (800) 877–8339.
PO 00000
Frm 00002
Fmt 4700
Sfmt 4700
SUPPLEMENTARY INFORMATION:
I. Background
A. Establishment of the Federal Housing
Finance Agency
The Housing and Economic Recovery
Act of 2008 (HERA), Public Law 110–
289, 122 Stat. 2654, amended the
Federal Housing Enterprises Financial
Safety and Soundness Act of 1992 (12
U.S.C. 4501 et seq.) (Safety and
Soundness Act) to establish FHFA as an
independent agency of the Federal
Government. FHFA was established to
oversee the operations of the Federal
National Mortgage Association, the
Federal Home Loan Mortgage
Corporation (collectively, Enterprises),
and the Federal Home Loan Banks
(Banks) (collectively, regulated entities).
FHFA is to ensure that the regulated
entities operate in a safe and sound
manner including being capitalized
adequately; that their operations foster
liquid, efficient, competitive and
resilient national housing finance
markets; that they comply with the
Safety and Soundness Act and their
authorizing statutes, and with rules,
regulations, guidelines and orders
issued under those statutes; that they
carry out their missions through
activities authorized and consistent
with the Safety and Soundness Act and
their authorizing statutes; and that the
activities and operations of the entities
are consistent with the public interest.1
The regulated entities continue to
operate under regulations promulgated
by the Office of Federal Housing
Enterprise Oversight and the Federal
Housing Finance Board, and the
relevant regulations of the Department
of Housing and Urban Development,
until such time as the existing
regulations are supplanted by
regulations promulgated by FHFA.2
B. The Bank System Generally
The twelve Banks are
instrumentalities of the United States
organized under the Federal Home Loan
Bank Act (Bank Act).3 See 12 U.S.C.
1423, 1432(a). The Banks are
cooperatives: Only members of a Bank
may purchase the capital stock of a
Bank, and only members or certain
eligible housing associates (such as state
housing finance agencies) may obtain
access to secured loans, known as
advances, or other products provided by
1 12
U.S.C. 4513.
1302 and 1312 of HERA.
3 Each Bank is generally referred to by the name
of the city in which it is located. The twelve Banks
are located in: Boston, New York, Pittsburgh,
Atlanta, Cincinnati, Indianapolis, Chicago, Des
Moines, Dallas, Topeka, San Francisco, and Seattle.
2 Sections
E:\FR\FM\03MRR1.SGM
03MRR1
Agencies
[Federal Register Volume 76, Number 42 (Thursday, March 3, 2011)]
[Rules and Regulations]
[Pages 11667-11668]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-4423]
========================================================================
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. 76, No. 42 / Thursday, March 3, 2011 / Rules
and Regulations
[[Page 11667]]
DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Part 1
RIN 0503-AA42
Procedures Relating to Awards Under the Equal Access to Justice
Act
AGENCY: Office of the Secretary, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Agriculture (USDA) is amending its
regulations implementing the Equal Access to Justice Act (EAJA) by
raising the maximum hourly attorney fees rate from $125.00 to $150.00
for covered proceedings initiated on and after the effective date of
this final rule.
DATES: This final rule is effective March 3, 2011.
FOR FURTHER INFORMATION CONTACT: Adam J. Hermann, Esq., Attorney
Advisor, General Law Division, Office of the General Counsel, South
Building Room 3311, USDA, 1400 Independence Ave., SW., Washington, DC
20250; Voice: (202) 720-9425; Email: adam.hermann@ogc.usda.gov.
SUPPLEMENTARY INFORMATION: On July 30, 2010, USDA published a proposed
rule (75 FR 44928, July 30, 2010) to amend its regulations implementing
the Equal Access to Justice Act (EAJA), 5 U.S.C. 504, to raise the
maximum hourly attorney fees rate set forth in 7 CFR 1.186 from $125.00
to $150.00 for proceedings initiated on and after the effective date of
the publication of this final rule. EAJA, 5 U.S.C. 504, provides to
certain parties in adversary agency adjudications reimbursement for
attorney fees and other expenses under limited circumstances. The
proposed rule was issued in response to a Petition for Rulemaking (PFR)
received by USDA on September 29, 2008, filed by Public Citizen
Litigation Group, Five Points Road Joint Venture, and Charles Brown,
Esq., under the provisions of 7 CFR 1.187 and 1.28. The PFR sought an
increase in the maximum attorney fees payable based on the U.S.
Department of Labor Consumer Price All-Items Index for All Urban
Consumers. In brief, the petitioners sought an automatic escalator
clause using 1996 as the base year and $125.00 per hour as the base
year maximum fee, with the new amount applying to all pending and
future covered proceedings before USDA.
In the proposed rule, USDA invited comments, which were due by
September 28, 2010. USDA received two comments.
Comment: One commenter, citing the economy, objected to the
increase in the maximum hourly rate from $125.00 to $150.00 and
suggested that the maximum hourly rate should be decreased. This
commenter also advocated for the enactment of a law requiring attorneys
to provide twenty hours per week of ``public service.''
Response: USDA considered this comment but is not making any
changes to the proposed rule. In the Small Business Regulatory
Enforcement Fairness Act of 1996, Public Law 104-121, Title II, section
231 (1996), Congress amended EAJA at 5 U.S.C. 504(b)(1)(A) by raising
the hourly maximum attorney fees rate from $75.00 to $125.00. Because
inflation has eroded the value of the $125 per hour fee set by Congress
in 1996, USDA does not believe it would be appropriate to decrease the
$125 per hour rate. Rather, USDA has determined that an increase of
$25.00--from $125.00 to $150.00--is appropriate. Finally, the enactment
of laws is a function of the Congress and is, therefore, outside the
purview of this regulation.
Comment: One commenter objected to any increase in the maximum
hourly rate until ``a more detailed process of documentation, as well
as a comprehensive review of past usage of the EAJA'' is undertaken.
The commenter argued that attorney fee reimbursements under EAJA ``have
been recovered and utilized primarily by environmental groups,'' and
that such groups are ``clearly receiving a disproportionate amount of
funding from EAJA.'' The commenter suggested that attorneys
representing industry groups are disadvantaged because of such
disproportionate amount of EAJA attorney fees reimbursements that are
recovered by environmental groups. In support of its assertions, the
commenter referred generally to research conducted by the Budd-Falen
Law Offices, L.L.C., but does not state whether such research analyzed
the EAJA statute for agency adjudications (5 U.S.C. 504) or the EAJA
statute applicable in Federal judiciary proceedings (28 U.S.C. 2412),
or both.
Response: USDA considered this comment but is not making any
changes to the proposed rule. Eligibility for reimbursement of attorney
fees to prevailing parties in agency adversary adjudications is
determined by statute (5 U.S.C. 504). If an entity meets the statutory
eligibility requirements and otherwise complies with the EAJA
procedures as implemented by USDA in 7 CFR part 1, subpart J, an EAJA
award will be made. The mere status of the entity as an environmental
group or an industry group has no bearing on agency EAJA
determinations. EAJA determinations in judicial proceedings are
governed by 28 U.S.C. 2412 and are made by the courts, not the agency.
Any perceived inequities in EAJA reimbursements across particular
interest groups may be addressed to Congress as part of the legislative
process. USDA believes that an increase in the current maximum hourly
rate is appropriate for the reasons stated previously.
For the reasons stated in the proposed rule, USDA is raising the
hourly fee set forth in 7 CFR 1.186 from $125.00 to $150.00, to be
applicable to covered proceedings initiated on and after the effective
date of this final rule.
This action has been reviewed under Executive Order No. 12866 and
has been determined not to be a ``significant regulatory action.'' This
final rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency; nor will
it materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs; nor will it have an annual effect on the
economy of $100 million or more; nor will it adversely affect the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or Tribal
governments or communities in a material way. Furthermore, it does not
raise a novel legal or policy issue arising out of legal
[[Page 11668]]
mandates, the President's priorities or principles set forth in the
Executive Order.
USDA certifies that this final rule will not have a significant
economic impact on a substantial number of small entities as defined in
the Regulatory Flexibility Act, Public Law 96-534, as amended (5 U.S.C.
601 et seq.).
USDA has determined that the provisions of the Paperwork Reduction
Act, as amended, (44 U.S.C. 3501 et seq.), do not apply to any
collections of information contained in this final rule because any
such collections of information are made during the conduct of
administrative action involving an agency against specific individuals
or entities. 5 CFR 1320.4(a)(2).
List of Subjects in 7 CFR Part 1
Administrative practice and procedure.
Accordingly, Title 7 of the Code of Federal Regulations is amended
as follows:
PART 1--ADMINISTRATIVE REGULATIONS
0
1. The authority for part 1 continues to read as follows:
Authority: 5 U.S.C. 301, unless otherwise noted.
Subpart J--Procedures Relating to Awards Under the Equal Access to
Justice Act in Proceedings Before the Department
0
2. Amend Sec. 1.186 by revising paragraph (b) to read as follows:
Sec. 1.186 Allowable fees and expenses.
* * * * *
(b) In proceedings commenced on or after the effective date of this
paragraph, no award for the fee of an attorney or agent under the rules
in this subpart may exceed $150 per hour. No award to compensate an
expert witness may exceed the highest rate at which the Department pays
expert witnesses, which is set out at Sec. 1.150 of this part.
However, an award also may include the reasonable expenses of the
attorney, agent, or witness as a separate item, if the attorney, agent,
or witness ordinarily charges clients separately for such expenses.
* * * * *
0
3. Amend Sec. 1.187 by revising paragraph (a) to read as follows:
Sec. 1.187 Rulemaking on maximum rates for attorney fees.
(a) If warranted by an increase in the cost of living or by special
circumstances (such as limited availability of attorneys qualified to
handle certain types of proceedings), the Department may adopt
regulations providing that attorney fees may be awarded at a rate
higher than $150 per hour in some or all of the types of proceedings
covered by this part. The Department will conduct any rulemaking
proceedings for this purpose under the informal rulemaking procedures
of the Administrative Procedure Act.
* * * * *
Thomas J. Vilsack,
Secretary of Agriculture.
[FR Doc. 2011-4423 Filed 3-2-11; 8:45 am]
BILLING CODE 3410-90-P