[Federal Register Volume 65, Number 30 (Monday, February 14, 2000)]
[Proposed Rules]
[Pages 7312-7316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3242]


 ========================================================================
 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. 65, No. 30 / Monday, February 14, 2000 / 
Proposed Rules  

[[Page 7312]]



DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Office of Federal Housing Enterprise Oversight

12 CFR Part 1735

RIN 2550-AA08


Implementation of the Equal Access to Justice Act

AGENCY: Office of Federal Housing Enterprise Oversight, HUD.

ACTION: Proposed regulation.

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SUMMARY: The Office of Federal Housing Enterprise Oversight (OFHEO) is 
proposing a regulation that would implement the Equal Access to Justice 
Act (Act). The Act provides for the award of fees and other expenses to 
eligible individuals and entities that are parties to adversary 
adjudications before the Federal government. The proposed regulation 
would establish procedures for the filing and consideration of 
applications for awards of fees and expenses in connection with 
adversary adjudications before OFHEO.

DATES: Written comments on the proposed regulation must be received by 
April 14, 2000.

ADDRESSES: Send written comments concerning the proposed regulation to 
Anne E. Dewey, General Counsel, Office of Federal Housing Enterprise 
Oversight, Fourth Floor, 1700 G Street, NW., Washington, DC 20552. 
Written comments may also be sent to Ms. Dewey by electronic mail at 
[email protected].

FOR FURTHER INFORMATION CONTACT: Isabella W. Sammons, Associate General 
Counsel, telephone (202) 414-3790, (not a toll-free number), Office of 
Federal Housing Enterprise Oversight, Fourth Floor, 1700 G Street, NW., 
Washington, DC 20552. The telephone number for the Telecommunications 
Device for the Deaf is (800) 877-8339.

SUPPLEMENTARY INFORMATION:

Background

    The Equal Access to Justice Act (Act), 5 U.S.C. 504, provides that 
eligible individuals and entities that are parties to adversary 
adjudications before Federal agencies may file an application for an 
award of fees and other expenses. Eligible parties may receive an award 
for fees and other expenses incurred by them in connection with an 
adversary adjudication before the Office of Federal Housing Enterprise 
Oversight (OFHEO) if they prevail over OFHEO, unless the position of 
OFHEO in the adversary adjudication was substantially justified. 
Eligible parties may also receive an award for fees and other expenses 
incurred by them in defending against a demand by OFHEO if the demand 
of OFHEO was substantially in excess of the decision in the adversary 
adjudication and was unreasonable when compared with such decision.
    The Act requires that OFHEO and other Federal agencies establish 
procedures for the filing and consideration of applications for an 
award of fees and other expenses. Subpart A of the proposed regulation 
sets forth definitions, eligibility requirements, standards for awards, 
and allowable fees and expenses. Subpart B describes the information 
that must be included in an application for award and Subpart C 
provides the procedures for filing and consideration of an application 
for award.
    The provisions of the proposed regulation reflect the 1996 
amendments to the Act that were enacted pursuant to Pub. L. 104-121, 
110 Stat. 862 (1996). Furthermore, to the extent appropriate, the 
provisions of the proposed regulation are substantially similar to the 
provisions of the Model Rules for Implementation of the Equal Access to 
Justice Act in Agency Proceedings, 1 CFR part 315 (1986) (51 FR 16659--
16669 (May 6, 1986)).

Comments

    OFHEO requests comment from the public and will take all comments 
into consideration before issuing the final regulation. Copies of all 
comments received will be available for examination by the public at 
the Office of Federal Housing Enterprise Oversight, Fourth Floor, 1700 
G Street, NW., Washington, DC 20552.

Regulatory Impact

Executive Order 12866, Regulatory Planning and Review

    The proposed regulation is not classified as a significant rule 
under Executive Order 12866 because it will not result in an annual 
effect on the economy of $100 million or more or a major increase in 
costs or prices for consumers, individual industries, Federal, State, 
or local government agencies, or geographic regions; or have 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic or 
foreign markets. Accordingly, no regulatory impact assessment is 
required and this proposed regulation has not been submitted to the 
Office of Management and Budget for review.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that 
a regulation that has a significant economic impact on a substantial 
number of small entities, small businesses, or small organizations must 
include an initial regulatory flexibility analysis describing the 
regulation's impact on small entities. Such an analysis need not be 
undertaken if the agency has certified that the regulation will not 
have a significant economic impact on a substantial number of small 
entities. 5 U.S.C. 605(b). OFHEO has considered the impact of the 
proposed regulation under the Regulatory Flexibility Act. The General 
Counsel of OFHEO certifies that the proposed regulation, if adopted, is 
not likely to have a significant economic impact on a substantial 
number of small business entities because the number of applications 
for awards by small entities is expected to be extremely small.

Paperwork Reduction Act

    The proposed regulation does not contain any information collection 
requirements that require the approval of the Office of Management and 
Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

Unfunded Mandates Reform Act of 1995

    The proposed regulation does not require the preparation of an 
assessment statement in accordance with the

[[Page 7313]]

Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531. Assessment 
statements are not required for regulations that incorporate 
requirements specifically set forth in law. As explained in the 
preamble, the proposed regulation implements specific statutory 
requirements. In addition, the proposed regulation does not include a 
Federal mandate that may result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation) in any one year.

List of Subjects in 12 CFR Part 1735

    Administrative practice and procedure, Equal access to justice.

    For the reasons stated in the preamble, OFHEO proposes to add part 
1735 to chapter XVII of title 12 of the Code of Federal Regulations as 
follows:

PART 1735--IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT

Subpart A--General Provisions

Sec.
1735.1   Purpose and scope.
1735.2   Definitions.
1735.3   Eligible parties.
1735.4   Standards for awards.
1735.5   Allowable fees and expenses.
1735.6   Rulemaking on maximum rate for fees.
1735.7   Awards against other agencies.
1735.8-9   [Reserved]
Subpart B--Information Required from Applicants
1735.10   Contents of the application for award.
1735.11   Request for confidentiality of net worth exhibit.
1735.12   Documentation of fees and expenses.
1735.13--1735.19   [Reserved]
Subpart C--Procedures for Filing and Consideration of the Application 
for Award
1735.20   Filing and service of the application for award and 
related papers.
1735.21   Answer to the application for award.
1735.22   Reply to the answer.
1735.23   Comments by other parties.
1735.24   Settlement.
1735.25   Further proceedings on the application for award.
1735.26   Decision of the adjudicative officer.
1735.27   Review by OFHEO.
1735.28   Judicial review.
1735.29   Payment of award.

    Authority: 5 U.S.C. 504(c)(1).

Subpart A--General Provisions


Sec. 1735.1  Purpose and scope.

    (a) This part implements the Equal Access to Justice Act, 5 U.S.C. 
504, by establishing procedures for the filing and consideration of 
applications for award of fees and other expenses to eligible 
individuals and entities who are parties to adversary adjudications 
before OFHEO.
    (b) This part applies to the award of fees and other expenses in 
connection with adversary adjudications before OFHEO; However, if a 
court reviews the underlying decision of the adversary adjudication, an 
award for fees and other expenses may not be made only pursuant to 28 
U.S.C. 2412(d)(3).


Sec. 1735.2  Definitions.

    (a) Adjudicative officer means the official who presided at the 
underlying adversary adjudication, without regard to whether the 
official is designated as a hearing examiner, administrative law judge, 
administrative judge, or otherwise.
    (b) Adversary adjudication means an administrative proceeding 
conducted by OFHEO under 5 U.S.C. 554 in which the position of OFHEO or 
any other agency of the United States is represented by counsel or 
otherwise, including but not limited to an adjudication conducted under 
12 CFR part 1780. Any issue as to whether an administrative proceeding 
is an adversary adjudication for purposes of this part will be an issue 
for resolution in the proceeding on the application for award.
    (c) Affiliate means an individual, corporation, or other entity 
that directly or indirectly controls or owns a majority of the voting 
shares or other interests of the party, or any corporation or other 
entity of which the party directly or indirectly owns or controls a 
majority of the voting shares or other interest, unless the 
adjudicative officer determines that it would be unjust and contrary to 
the purpose of the Equal Access to Justice Act in light of the actual 
relationship between the affiliated entities to consider them to be 
affiliates for purposes of this part.
    (d) Agency counsel means the attorney or attorneys designated by 
the General Counsel of OFHEO to represent OFHEO in an adversary 
adjudication covered by this part.
    (e) Demand of OFHEO means the express demand of OFHEO that led to 
the adversary adjudication, but does not include a recitation by OFHEO 
of the maximum statutory penalty when accompanied by an express demand 
for a lesser amount.
    (f) Fees and other expenses include reasonable attorney or agent 
fees, the reasonable expenses of expert witnesses, and the reasonable 
cost of any study, analysis, engineering report, test, or project that 
is found by the agency to be necessary for the preparation of the 
eligible party's case.
    (g) Final disposition means the date on which a decision or order 
disposing of the merits of the adversary adjudication or any other 
complete resolution of the adversary adjudication, such as a settlement 
or voluntary dismissal, becomes final and unappealable, both within the 
agency and to the courts.
    (h) OFHEO means the Office of Federal Housing Enterprise Oversight.
    (i) Party means an individual, partnership, corporation, 
association, or public or private organization that is named or 
admitted as a party, that is admitted as a party for limited purposes, 
or that is properly seeking and entitled as of right to be admitted as 
a party in an adversary adjudication.
    (j) Position of OFHEO means the position taken by OFHEO in the 
adversary adjudication, including the action or failure to act by OFHEO 
upon which the adversary adjudication was based.


Sec. 1735.3  Eligible parties.

    (a) To be eligible for an award an award of fees and other expenses 
under Sec. 1735.4(a), a party must be a small entity as defined in 5 
U.S.C. 601.
    (b)(1) To be eligible for an award of fees and other expenses for 
prevailing parties under Sec. 1735.5(b), a party must be one of the 
following:
    (i) An individual who has a net worth of not more than $2 million;
    (ii) The sole owner of an unincorporated business who has a net 
worth of not more than $7 million, including both personal and business 
interest, and not more than 500 employees; however, a party who owns an 
unincorporated business will be considered to be an ``individual'' 
rather than the ``sole owner of an unincorporated business'' if the 
issues on which the party prevails are related primarily to personal 
interests rather than to business interests.
    (iii) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. 501(c)(3), 
with not more than 500 employees;
    (iv) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act, 12 U.S.C. 1141j(a), with not more than 500 
employees; or
    (v) Any other partnership, corporation, association, unit of local 
government, or organization that has a net worth of not more than $7 
million and not more than 500 employees.
    (2) For purposes of eligibility under paragraph (b) of this 
section:

[[Page 7314]]

    (i) The employees of a party include all persons who regularly 
perform services for remuneration for the party, under the party's 
direction and control. Part-time employees shall be included on a 
proportional basis.
    (ii) The net worth and number of employees of the party and its 
affiliates shall be aggregated to determine eligibility.
    (iii) The net worth and number of employees of a party shall be 
determined as of the date the underlying adversary adjudication was 
initiated.
    (c) A party that participates in an adversary adjudication 
primarily on behalf of one or more entities that would be ineligible 
for an award is not itself eligible for an award.


Sec. 1735.4  Standards for awards.

    (a) An eligible party that files an application for award of fees 
and other expenses in accordance with this part shall receive an award 
of fees and other expenses related to defending against a demand of 
OFHEO if the demand was in excess of the decision in the underlying 
adversary adjudication and was unreasonable when compared with the 
decision under the facts and circumstances of the case, unless the 
party has committed a willful violation of law or otherwise acted in 
bad faith, or unless special circumstances make an award unjust. The 
burden of proof that the demand of OFHEO was substantially in excess of 
the decision and is unreasonable when compared with the decision is on 
the eligible party. An award under this paragraph shall be paid only as 
a consequence of appropriations paid in advance.
    (b) An eligible party that submits an application for award in 
accordance with this part shall receive an award of fees and other 
expenses incurred in connection with an adversary adjudication or in a 
significant and discrete substantive portion of the adversary 
adjudication in which it prevailed, unless the position of OFHEO in the 
adversary adjudication was substantially justified or special 
circumstances make an award unjust. OFHEO has the burden of proof to 
show that its position was substantially justified and may do so by 
showing that its position was reasonable in law and in fact.


Sec. 1735.5  Allowable fees and expenses.

    (a) Awards of fees and other expenses shall be based on rates 
customarily charged by persons engaged in the business of acting as 
attorneys, agents, and expert witnesses, even if the services were made 
available without charge or at a reduced rate to the party. However, 
except as provided in Sec. 1735.6, an award for the fee of an attorney 
or agent may not exceed $125 per hour and an award to compensate an 
expert witness may not exceed the highest rate at which OFHEO pays 
expert witnesses. However, an award may also include the reasonable 
expenses of the attorney, agent, or expert witness as a separate item 
if he or she ordinarily charges clients separately for such expenses.
    (b) In determining the reasonableness of the fee sought for an 
attorney, agent, or expert witness, the adjudicative officer shall 
consider the following:
    (1) If the attorney, agent, or expert witness is in private 
practice, his or her customary fees for similar services; or, if the 
attorney, agent, or expert witness is an employee of the eligible 
party, the fully allocated costs of the services;
    (2) The prevailing rate for similar services in the community in 
which the attorney, agent, or expert witness ordinarily performs 
services;
    (3) The time actually spent in the representation of the eligible 
party;
    (4) The time reasonably spent in light of the difficulty or 
complexity of the issues in the adversary adjudication; and
    (5) Such other factors as may bear on the value of the services 
provided.
    (c) In determining the reasonable cost of any study, analysis, 
engineering report, test, project, or similar matter prepared on behalf 
of a party, the adjudicative officer shall consider the prevailing rate 
for similar services in the community in which the services were 
performed.
    (d) Fees and other expenses incurred before the date on which an 
adversary adjudication was initiated will be awarded only if the 
eligible party can demonstrate that they were reasonably incurred in 
preparation for the adversary adjudication.


Sec. 1735.6  Rulemaking on maximum rate for fees.

    If warranted by an increase in the cost of living or by special 
circumstances, OFHEO may adopt regulations providing for an award of 
attorney or agent fees at a rate higher than $125 per hour in adversary 
adjudications covered by this part. Special circumstances include the 
limited availability of attorneys or agents who are qualified to handle 
certain types of adversary adjudications. OFHEO will conduct any 
rulemaking proceedings for this purpose under the informal rulemaking 
procedures of the Administrative Procedures Act, 5 U.S.C. 553.


Sec. 1735.7  Awards against other agencies.

    If another agency of the United States participates in an adversary 
adjudication before OFHEO and takes a position that was not 
substantially justified, the award or appropriate portion of the award 
to an eligible party that prevailed over that agency shall be made 
against that agency.


Sec. Sec. 1735.8--1735.9  [Reserved]

Subpart B--Information Required from Applicants


Sec. 1735.10  Contents of the application for award.

    (a) An application for award of fees and other expenses under 
either Sec. 1735.4(a) and Sec. 1735.4(b) shall:
    (1) Identify the applicant and the adversary adjudication for which 
an award is sought;
    (2) State the amount of fees and other expenses for which an award 
is sought;
    (3) Provide the statements and documentation required by paragraph 
(b) or (c) of this section and Sec. 1735.12 and any additional 
information required by the adjudicative officer; and
    (4) Be signed by the applicant or an authorized officer or attorney 
of the applicant and contain or be accompanied by a written 
verification under oath or under penalty of perjury that the 
information provided in the application is true and correct.
    (b) An application for award under Sec. 1735.4(a) shall show that 
the demand of OFHEO was substantially in excess of, and was 
unreasonable when compared to, the decision in the underlying adversary 
adjudication under the facts and circumstances of the case. It shall 
also show that the applicant is a small entity as defined in 5 U.S.C. 
601.
    (c) An application for award under Sec. 1735.4(b) shall:
    (1) Show that the applicant has prevailed in a significant and 
discrete substantive portion of the underlying adversary adjudication 
and identify the position of OFHEO in the adversary adjudication that 
the applicant alleges was not substantially justified;
    (2) State the number of employees of the applicant and describe 
briefly the type and purposes of its organization or business (if the 
applicant is not an individual);
    (3) State that the net worth of the applicant does not exceed $2 
million, if the applicant is an individual; or for all other 
applicants, state that the net worth of the applicant and its 
affiliates, if any, does not exceed $7 million; and
    (4) Include one of the following:
    (i) A detailed exhibit showing the net worth (net worth exhibit) of 
the

[[Page 7315]]

applicant and its affiliates, if any, when the underlying adversary 
adjudication was initiated. The net worth exhibit may be in any form 
convenient to the applicant as long as the net worth exhibit provides 
full disclosure of the assets and liabilities of the applicant and its 
affiliates, if any, and is sufficient to determine whether the 
applicant qualifies as an eligible party;
    (ii) A copy of a ruling by the Internal Revenue Service that shows 
that the applicant qualifies as an organization described in section 
501(c)(3) of the Internal Revenue Code, 26 U.S.C. 501(c)(3); or in the 
case of a tax-exempt organization not required to obtain a ruling from 
the Internal Revenue Service on its exempt status, a statement that 
describes the basis for the belief that the applicant qualifies under 
such section; or
    (iii) A statement that the applicant is a cooperative association 
as defined in section 15(a) of the Agricultural Marketing Act, 12 
U.S.C. 1141j(a).


Sec. 1735.11  Request for confidentiality of net worth exhibit.

    (a) The net worth exhibit described in Sec. 1735.10(c)(4)(i) shall 
be included in the public record of the proceeding for the award of 
fees and other expenses, except if confidential treatment is requested 
and granted as provided in paragraph (b) of this section.
    (b)(1) The applicant may request confidential treatment of the 
information in the net worth exhibit by filing a motion directly with 
the adjudicative officer in a sealed envelope labeled ``Confidential 
Financial Information.'' If the adjudicative officer finds that the 
information should be withheld from public disclosure, any request to 
inspect or copy the information by another party or the public shall be 
resolved in accordance with the Freedom of Information Act, 5 U.S.C. 
552b, and the Releasing Information regulation at 12 CFR part 1710.
    (2) The motion shall:
    (i) Include a copy of the portion of the net worth exhibit sought 
to be withheld;
    (ii) Describe the information sought to be withheld; and
    (iii) Explain why the information is exempt from disclosure under 
the Freedom of Information Act and why public disclosure of the 
information would adversely affect the applicant and is not in the 
public's interest.
    (iv) Be served on agency counsel but need not be served on any 
other party to the proceeding.


Sec. 1735.12  Documentation of fees and expenses.

    (a) The application for award shall be accompanied by full and 
itemized documentation of the fees and other expenses for which an 
award is sought. The adjudicative officer may require the applicant to 
provide vouchers, receipts, logs, or other documentation for any fees 
or expenses claimed.
    (b) A separate itemized statement shall be submitted for each 
entity or individual whose services are covered by the application. 
Each itemized statement shall include:
    (1) The hours spent by each entity or individual;
    (2) A description of the specific services performed and the rates 
at which each fee has been computed; and
    (3) Any expenses for which reimbursement is sought, the total 
amount claimed, and the total amount paid or payable by the applicant 
or by any other person or entity.


Sec. Sec. 1735.13--1735.19  [Reserved]

Subpart C--Procedures for Filing and Consideration of the 
Application for Award


Sec. 1735.20  Filing and service of the application for award and 
related papers.

    (a) An application for an award of fees and other expenses must be 
filed no later than 30 days after the final disposition of the 
underlying adversary adjudication.
    (b) An application for award and other papers related to the 
proceedings on the application for award shall be filed and served on 
all parties in the same manner as papers are filed and served in the 
underlying adversary adjudication, except as otherwise provided in this 
part.
    (c) The computation of time for filing and service of the 
application of award and other papers shall be computed in the same 
manner as in the underlying adversary adjudication.


Sec. 1735.21  Answer to application for award.

    (a) Agency counsel shall file an answer within 30 days after 
service of an application for award of fees and other expenses except 
as provided in paragraphs (b) and (c) of this section. In the answer, 
agency counsel shall explain any objections to the award requested and 
identify the facts relied upon to support the objections. If any of the 
alleged facts are not already in the record of the underlying adversary 
adjudication, agency counsel shall include with the answer either 
supporting affidavits or a request for further proceedings under 
Sec. 1735.25.
    (b) If agency counsel and the applicant believe that the issues in 
the application for award can be settled, they may jointly file a 
statement of their intent to negotiate a settlement. The filing of this 
statement shall extend the time for filing an answer for an additional 
30 days. Upon request by agency counsel and the applicant, the 
adjudicative officer may grant for good cause further time extensions.
    (c) Agency counsel may request that the adjudicative officer extend 
the time period for filing an answer. If agency counsel does not answer 
or otherwise does not contest or settle the application for award 
within the 30-day period or the extended time period, the adjudicative 
officer may make an award of fees and other expenses upon a 
satisfactory showing of entitlement by the applicant.


Sec. 1735.22  Reply to the answer.

    Within 15 days after service of an answer, the applicant may file a 
reply. If the reply is based on any alleged facts not already in the 
record of the underlying adversary adjudication, the applicant shall 
include with the reply either supporting affidavits or a request for 
further proceedings under Sec. 1735.25.


Sec. 1735.23  Comments by other parties.

    Any party to the underlying adversary adjudication other than the 
applicant and agency counsel may file comments on an application for 
award within 30 calendar days after it is served, or on an answer 
within 15 calendar days after it is served. A commenting party may not 
participate further in proceedings on the application unless the 
adjudicative officer determines that the public interest requires such 
participation in order to permit full exploration of matters raised in 
the comments.


Sec. 1735.24  Settlement.

    The applicant and agency counsel may agree on a proposed settlement 
of an award before the final decision on the application for award is 
made, either in connection with a settlement of the underlying 
adversary adjudication or after the underlying adversary adjudication 
has been concluded. If the eligible party and agency counsel agree on a 
proposed settlement of an award before an application for award has 
been filed, the application shall be filed with the proposed 
settlement.


Sec. 1735.25  Further proceedings on the application for award.

    (a) On request of either the applicant or agency counsel, on the 
adjudicative officer's own initiative, or as requested by the Director 
of OFHEO under Sec. 1735.27, the adjudicative officer may

[[Page 7316]]

order further proceedings, such as an informal conference, oral 
argument, additional written submissions, or, as to issues other than 
substantial justification (such as the applicant's eligibility or 
substantiation of fees and expenses), pertinent discovery or an 
evidential hearing. Such further proceedings shall be held only when 
necessary for full and fair resolution of the issues arising from the 
application for award and shall be conducted as promptly as possible. 
The issue as to whether the position of OFHEO in the underlying 
adversary adjudication was substantially justified shall be determined 
on the basis of the whole administrative record that was made in the 
underlying adversary adjudication.
    (b) A request that the adjudicative officer order further 
proceedings under this section shall specifically identify the 
information sought on the disputed issues and shall explain why the 
additional proceedings are necessary to resolve the issues.


Sec. 1735.26  Decision of the adjudicative officer.

    (a) The adjudicative officer shall make the initial decision on the 
basis of the written record, except if further proceedings are ordered 
under Sec. 1735.25.
    (b) The adjudicative officer shall issue a written initial decision 
on the application for award within 30 days after completion of 
proceedings on the application. The initial decision shall become the 
final decision of OFHEO after 30 days from the day it was issued, 
unless review is ordered under Sec. 1735.27.
    (c) In all initial decisions, the adjudicative officer shall 
include findings and conclusions with respect to the applicant's 
eligibility and an explanation of the reasons for any difference 
between the amount requested by the applicant and the amount awarded. 
If the applicant has sought an award against more than one agency, the 
adjudicative officer shall also include findings and conclusions with 
respect to the allocation of payment of any award made.
    (d) In initial decisions on applications filed pursuant to 
Sec. 1735.4(a), the adjudicative officer shall include findings and 
conclusions as to whether OFHEO made a demand that was substantially in 
excess of the decision in the underlying adversary adjudication and 
that was unreasonable when compared with that decision; and, if at 
issue, whether the applicant has committed a willful violation of the 
law or otherwise acted in bad faith, or whether special circumstances 
would make the award unjust.
    (e) In decisions on applications filed pursuant to Sec. 1735.4(b), 
the adjudicative officer shall include written findings and conclusions 
as to whether the applicant is a prevailing party and whether the 
position of OFHEO was substantially justified; and, if at issue, 
whether the applicant unduly protracted or delayed the underlying 
adversary adjudication or whether special circumstance make the award 
unjust.


Sec. 1735.27  Review by OFHEO.

    Within 30 days after the adjudicative officer issues an initial 
decision under Sec. 1735.26, either the applicant or agency counsel may 
request the Director of OFHEO to review the initial decision of the 
adjudicative officer. The Director of OFHEO or his or her designee may 
also decide, on his or her own initiative, to review the initial 
decision. Whether to review a decision is at the discretion of the 
Director of OFHEO or his or her designee. If review is ordered, the 
Director of OFHEO or his or her designee shall issue a final decision 
on the application for award or remand the application for award to the 
adjudicative officer for further proceedings under Sec. 1735.25.


Sec. 1735.28  Judicial review.

    Any party, other than the United States, that is dissatisfied with 
the final decision on an application for award of fees and expenses 
under this part may seek judicial review as provided in 5 U.S.C. 
504(c)(2).


Sec. 1735.29  Payment of award.

    To receive payment of an award of fees and other expenses granted 
under this part, the applicant shall submit a copy of the final 
decision that grants the award and a certification that the applicant 
will not seek review of the decision in the United States courts to the 
Director, Office of Federal Housing Enterprise Oversight, 1700 G 
Street, NW., Washington, DC 20552. OFHEO shall pay the amount awarded 
to the applicant within 60 days of receipt of the submission of the 
copy of the final decision and the certification, unless judicial 
review of the award has been sought any party to the proceedings.

    Dated: February 7, 2000.
Armando Falcon, Jr.,
Director, Office of Federal Housing Enterprise Oversight.
[FR Doc. 00-3242 Filed 2-11-00; 8:45 am]
BILLING CODE 4220-01-P