[Federal Register Volume 74, Number 214 (Friday, November 6, 2009)]
[Rules and Regulations]
[Pages 57401-57402]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26747]



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 Rules and Regulations
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  Federal Register / Vol. 74, No. 214 / Friday, November 6, 2009 / 
Rules and Regulations  

[[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.

0
Accordingly, Title 7 of the Code of Federal Regulations is amended as 
set forth below:

PART 11--NATIONAL APPEALS DIVISION

0
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

0
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).
* * * * *


[[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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