[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
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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.

-----------------------------------------------------------------------

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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