[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  

[[Page 44928]]


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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