[Federal Register: November 6, 2009 (Volume 74, Number 214)]
[Rules and Regulations]
[Page 57401-57402]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06no09-1]
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Rules and Regulations
Federal Register
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[[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.
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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.
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Accordingly, Title 7 of the Code of Federal Regulations is amended as
set forth below:
PART 11--NATIONAL APPEALS DIVISION
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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
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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).
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[[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]
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