[Federal Register Volume 76, Number 42 (Thursday, March 3, 2011)]
[Rules and Regulations]
[Pages 11667-11668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4423]
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Rules and Regulations
Federal Register
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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.
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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: [email protected].
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]
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