[Federal Register Volume 75, Number 146 (Friday, July 30, 2010)]
[Proposed Rules]
[Pages 44928-44929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18099]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 75, No. 146 / Friday, July 30, 2010 /
Proposed Rules
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DEPARTMENT OF AGRICULTURE
7 CFR Part 1
RIN 0503-AA42
Office of the Secretary: Procedures Relating to Awards Under the
Equal Access to Justice Act
AGENCY: Office of the Secretary, USDA.
ACTION: Proposed rule.
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SUMMARY: The U.S. Department of Agriculture (USDA) proposes to amend
its regulations implementing the Equal Access to Justice Act (EAJA),
which provides to certain parties in adversary agency adjudications
reimbursement for attorney fees and other expenses under limited
circumstances. In this document, USDA is proposing to raise the hourly
fee.
DATES: In order to be considered, comments should be submitted within
September 28, 2010.
ADDRESSES: You may submit comments, identified by RIN 0503-AA42, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: [email protected]. Include RIN 0503-AA42
in the subject line of the message.
Fax: 202-720-5837.
Mail: Paper, disk or CD-ROM submissions should be
submitted to Adam J. Hermann, Esq., General Law Division, Office of the
General Counsel, USDA, STOP 1415, 1400 Independence Avenue, SW.,
Washington, DC 20250.
Hand Delivery/Courier: Adam J. Hermann, Esq., General Law
Division, Office of the General Counsel, USDA, South Building Room
3311, 1400 Independence Ave., SW., Washington, DC 20250.
Instructions: All submissions received must include the agency name
and the RIN for this rulemaking. All comments received will be posted
without change to http://www.regulations.gov, including any personal
information provided.
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; E-mail: [email protected].
SUPPLEMENTARY INFORMATION: The Equal Access to Justice Act (EAJA), 5
U.S.C. 504, provides to certain parties in adversary agency
adjudications reimbursement for attorney fees and other expenses under
limited circumstances. In the Small Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA), Public Law 104-121, Title II, Sec. 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 per hour to $125.00 per
hour. EAJA also permits agencies to increase the maximum if ``the
agency determines by regulation that an increase in the cost of living
or a special factor, such as the limited availability of qualified
attorneys or agents for the proceedings involved, justifies a higher
fee.'' Departmental rules at 7 CFR 1.186 currently set the maximum EAJA
attorney fees at $125.00 per hour. Section 1.187 provides for informal
rulemaking to adjust the maximum rates for attorney fees.
On September 29, 2008, USDA received a Petition for Rulemaking
(PFR) 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 seeks 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 seek an
automatic escalator clause using 1996 as the base year and $125.00 per
hour as the base year maximum fee. The petitioners would have the
escalated amount apply to all pending and future covered proceedings
before USDA.
USDA has considered the petitioners' request, its rationale, and
the practice before other Federal agencies and the Federal courts. The
PFR emphasizes that Federal courts uniformly apply an escalator clause
based upon the cost of living index under the parallel provision for
EAJA fee reimbursement in 28 U.S.C. 2412, the analogue to 5 U.S.C. 504
applicable in Federal judiciary proceedings. USDA does not necessarily
believe that the practice of the Federal courts in this regard should
be controlling in light of the fact that the majority of Federal
agencies have retained the statutory maximum of $125.00 per hour in
administrative proceedings.
However, USDA does recognize that inflation has eroded the value of
the $125.00 per hour fee set by Congress in 1996. Therefore, USDA is
proposing to raise 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 the publication of this regulation in final
form.
This proposed rule has been reviewed under Executive Order No.
12866 and has been determined not to be a ``significant regulatory
action.'' This proposed 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 mandates, the
President's priorities or principles set forth in the Executive Order.
USDA certifies that this 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 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.
[[Page 44929]]
Accordingly, USDA proposes to amend Title 7 of the Code of Federal
Regulations as follows:
PART 1--ADMINISTRATIVE REGULATIONS
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
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.
* * * * *
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.
* * * * *
Done at Washington, DC, July 13, 2010.
Thomas J. Vilsack,
Secretary of Agriculture.
[FR Doc. 2010-18099 Filed 7-29-10; 8:45 am]
BILLING CODE 3410-90-P