[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38665-38666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18613]



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 Rules and Regulations
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  Federal Register / Vol. 60, No. 145 / Friday, July 28, 1995 / Rules 
and Regulations  


[[Page 38665]]


OFFICE OF GOVERNMENT ETHICS

5 CFR Part 2610

RIN 3209-AA19


Implementation of the Equal Access to Justice Act

AGENCY: Office of Government Ethics (OGE).

ACTION: Final rule.

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SUMMARY: The Office of Government Ethics is adopting as final, with one 
correction, a previously published interim regulation establishing 
procedures, in accordance with the Equal Access to Justice Act and 
guidance from the Administrative Conference of the United States, for 
the award of attorney fees and other expenses to eligible individuals 
and entities who are parties to certain administrative proceedings 
(called ``adversary adjudications'') before the Office of Government 
Ethics. This regulation describes the parties eligible for awards and 
the proceedings which are covered. The rule also explains how to apply 
for awards, and the procedures and standards which the Office of 
Government Ethics will use to make awards.

EFFECTIVE DATE: September 26, 1995.

FOR FURTHER INFORMATION CONTACT: Janet K. Roell, Office of Government 
Ethics, telephone 202-523-5757, FAX 202-523-6325.

SUPPLEMENTARY INFORMATION: In this rulemaking document, the Office of 
Government Ethics is adopting as a final regulation, with correction of 
one typographical error, its previously published interim regulation 
under the Equal Access to Justice Act (EAJA), 5 U.S.C. 504. See 57 FR 
33267-33272 (July 28, 1992), as corrected at 59 FR 34755 (July 7, 
1994). The EAJA requires every agency to establish, by regulation, 
procedures for the submission and consideration of applications by 
eligible prevailing private parties for an award of fees and expenses 
incurred in connection with adversary adjudications before the agency. 
The interim OGE regulation (5 CFR part 2610), generally followed, with 
certain modifications, the final revised model rule issued on May 6, 
1986 (51 FR 16659-16669) by the Administrative Conference of the United 
States pursuant to its consultative role under EAJA.
    A 60-day comment period was provided in the interim regulation, and 
OGE received two comments. One comment addressed the appealability of 
the Board of Contract Appeals (BCA) decisions by the Director of the 
Office. The other comment addressed the fees that attorneys may be 
awarded when representing someone under the EAJA. The first commentator 
questioned whether a decision of a BCA should be reviewable by the OGE 
Director. He stated that all decisions of BCAs are autonomous and 
should remain so. After reviewing this matter, OGE does not believe any 
change to the EAJA regulation is needed. The Office of Government 
Ethics, which is a small agency, does not have a BCA and would have to 
request that agency's BCA hearings be held by an agency with a BCA. In 
this regard, OGE would coordinate with the rules and procedures 
established by that BCA, including the reviewability of its decisions. 
This Office notes that, to date, it has not had any EAJA claims filed 
in contract or any other matters before it.
    The second comment letter addressed the issue of increasing fees 
for attorney representation. That commentator, citing Jones v. Lujan, 
887 F.2d 1096, 1101 (D.C. Cir. 1989), suggested that OGE increase the 
$75 per hour maximum attorney fee rate currently allowed in its EAJA 
regulation to reflect the increases in the cost of living. The court in 
the Jones case awarded the prevailing private party an increased 
attorney litigation fee rate using a cost of living increase formula 
under 28 U.S.C. 2412(d)(2)(A)(ii). However, the court did not order the 
agency involved in that case, the Department of Interior, to change the 
similar fee structure as to administrative proceedings in its EAJA 
regulation and it did not. Upon review of the comment letter and case, 
and after checking several other agencies' EAJA rules (most of which 
likewise continue to provide for the $75 per hour maximum attorney fee 
rates), OGE has decided not to amend its regulation in this regard at 
this time. Section 2610.108 does provide a rulemaking mechanism for the 
maximum rate for attorney fees. Moreover, an EAJA reform bill (S. 554) 
was introduced earlier this year in the Senate which would, among other 
things, raise the maximum rate. This Office will continue to monitor 
its regulation, both as to the appropriateness of the fee rate and in 
general. Again, OGE notes that so far it has not received any EAJA 
applications.

Executive Order 12866

    In promulgating this final regulation, the Office of Government 
Ethics has adhered to the regulatory philosophy and the applicable 
principles of regulation set forth in section 1 of Executive Order 
12866, Regulatory Planning and Review. This regulation has also been 
reviewed by the Office of Management and Budget under that Executive 
order.

Regulatory Flexibility Act

    As Director of the Office of Government Ethics, I certify under the 
Regulatory Flexibility Act (5 U.S.C. chapter 6) that this regulation 
will not have a significant economic impact on a substantial number of 
small entities because the number of proceedings covered by the rule 
will be extremely small and they will primarily affect current and 
former executive branch Federal employees.
Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply 
because this regulation does not contain information collection 
requirements that require the approval of the Office of Management and 
Budget, since the collections of information called for under this rule 
are expected to involve nine or fewer persons each year. Section 
2610.201(f) of this rule contains a statement informing the public of 
this matter.

List of Subjects in 5 CFR Part 2610

    Administrative practice and procedure, Claims, Conflict of 
interests, Equal access to justice, Government employees.


[[Page 38666]]

    Approved: June 16, 1995.
Donald E. Campbell,
Deputy Director, Office of Government Ethics.

    Accordingly, for the reasons set forth in the preamble, the Office 
of Government Ethics is adopting the interim regulation codified at 5 
CFR part 2610, published at 57 FR 33267-33272 (July 28, 1992), as 
corrected at 59 FR 34755 (July 7, 1994), as a final regulation with the 
following amendment:

PART 2610--IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT

    1. The authority citation for part 2610 continues to read as 
follows:

    Authority: 5 U.S.C. 504(c)(1); 5 U.S.C. App. (Ethics in 
Government Act of 1978).

    2. In Sec. 2610.106, the word ``ineligible'' in the third sentence 
of paragraph (a) is revised to read ``eligible''.

[FR Doc. 95-18613 Filed 7-27-95; 8:45 am]
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