[Federal Register Volume 63, Number 52 (Wednesday, March 18, 1998)]
[Rules and Regulations]
[Pages 13115-13116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6986]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 63, No. 52 / Wednesday, March 18, 1998 /
Rules and Regulations
[[Page 13115]]
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OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2610
RIN 3209-AA20
Amendments to the Office of Government Ethics Rules Under the
Equal Access to Justice Act
AGENCY: Office of Government Ethics (OGE).
ACTION: Final rule; technical amendments.
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SUMMARY: The Office of Government Ethics is amending its rules under
the Equal Access to Justice Act on adversary administrative
adjudicatory proceedings to conform with the revisions enacted as part
of the Contract with America Advancement Act of 1996, which increased
the ceiling on attorney and agent fees and added small entities as
eligible parties to a new category of awards based on covered
proceedings involving any excessive demands, and is also making a
couple of minor clarifying and paperwork revisions.
EFFECTIVE DATE: March 18, 1998.
ADDRESSES: Office of Government Ethics, Suite 500, 1201 New York
Avenue, NW., Washington, DC 20005-3917, Attention: Ms. Grill.
FOR FURTHER INFORMATION CONTACT: Arielle H. Grill, Attorney-Advisor,
Office of General Counsel and Legal Policy, Office of Government
Ethics, telephone: 202-208-8000; TDD: 202-208-8025; FAX: 202-208-8037.
SUPPLEMENTARY INFORMATION: The Office of Government Ethics is amending
its rules at 5 CFR part 2610 for covered adversary administrative
proceedings under the Equal Access to Justice Act to implement changes
made to that law in subtitle C of the Small Business Regulatory
Enforcement Fairness Act of 1996 under the Contract with America
Advancement Act of 1996, Pub. L. 104-121. One change reflects that, for
covered proceedings commenced on or after March 29, 1996, the general
ceiling on attorney and agent fees was raised from $75.00 per hour to
$125.00 per hour. The section on rulemaking on the maximum fee rate is
also being revised to include agent fees along with attorney fees. In
addition, an award is permitted if the demand of the Office for relief
is substantially in excess of the decision in an adversary adjudication
and is unreasonable when compared with such 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 special
circumstances make an award unjust. Furthermore, a small entity as
defined in 5 U.S.C. 601 is declared to be an eligible party for such
relief. Finally, an out-of-date citation to a former provision in the
Paperwork Reduction Act regulations of the Office of Management and
Budget at 5 CFR part 1320 is being removed.
In this rulemaking, OGE is implementing these statutory changes as
to any covered administrative proceedings before it by revising
Secs. 2610.102, 2610.105, 2610.106, 2610.107, 2610.108, 2610.201 and
2610.204 of OGE's equal access rules. This is not an executive
branchwide regulation, as only covered OGE administrative proceedings
are affected. Moreover, OGE notes that, to date, no administrative
equal access claims have been filed with it.
Administrative Procedure Act
Pursuant to 5 U.S.C. 553(b) and (d), as Director of the Office of
Government Ethics, I find good cause exists for waiving the general
notice of proposed rulemaking, public comment procedures, and 30-day
delay in effectiveness as to these revisions. The notice, comment, and
delayed effective date are being waived because these technical
amendments to the OGE equal access regulation concern matters of agency
organization, procedure, and practice. Furthermore, it is in the public
interest that the new, higher attorney fees provisions and other
changes as to OGE administrative proceedings covered under the Equal
Access to Justice Act, as revised, be implemented as soon as possible.
Executive Order 12866
In promulgating these technical amendments to its equal access
rules, OGE 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. These amendments have not been
reviewed by the Office of Management and Budget under that Executive
Order, as they are not deemed ``significant'' thereunder.
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 rulemaking
will not have a significant economic impact on a substantial number of
small entities because it only affects certain covered OGE
administrative proceedings and OGE has not to date received any claims
as to such proceedings under the Equal Access to Justice Act.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply
because this technical amendments rulemaking does not contain any
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. Amended Sec. 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.
Approved: March 12, 1998.
Stephen D. Potts,
Director, Office of Government Ethics.
For the reasons set forth in the preamble, the Office of Government
Ethics is amending part 2610 of chapter XVI of 5 CFR as follows:
PART 2610--[AMENDED]
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. Section 2610.102 is amended by revising the second sentence and
adding a new third sentence to read as follows:
[[Page 13116]]
Sec. 2610.102 Purpose.
* * * An eligible party may receive an award when it prevails over
the Office, unless the Office's position in the proceeding was
substantially justified or special circumstances make an award unjust.
An eligible party may also receive an award when the demand of the
Office is substantially in excess of the decision in the adversary
adjudication and is unreasonable when compared with such 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
special circumstances make an award unjust. * * *
3. Section 2610.105 is amended by removing the word ``and'' at the
end of paragraph (b)(4), by removing the word ``any'' at the beginning
of paragraph (b)(5) and adding in its place the word ``Any,'' by
removing the period at the end of paragraph (b)(5) and adding in its
place a semicolon followed by the word ``and,'' and by adding a new
paragraph (b)(6) to read as follows:
Sec. 2610.105 Eligibility of applicants.
* * * * *
(b)(6) For purposes of Sec. 2610.106(b), a small entity as defined
in 5 U.S.C. 601.
* * * * *
4. Section 2610.106 is amended by redesignating paragraphs (b) and
(c) as paragraphs (c) and (d), respectively, by revising newly
redesignated paragraph (d), and by adding a new paragraph (b) to read
as follows:
Sec. 2610.106 Standards for awards.
* * * * *
(b) If, in a proceeding arising from an Office action to enforce an
applicant's compliance with a statutory or regulatory requirement, the
demand of the Office is substantially in excess of the decision in the
proceeding and is unreasonable when compared with that decision under
the facts and circumstances of the case, the applicant shall be awarded
the fees and other expenses related to defending against the excessive
demand, unless the applicant has committed a willful violation of law
or otherwise acted in bad faith or special circumstances make an award
unjust. The burden of proof that the demand of the Office is
substantially in excess of the decision and is unreasonable when
compared with such decision is on the applicant. As used in this
paragraph, ``demand'' means the express demand of the Office which led
to the adversary adjudication, but it does not include a recitation by
the Office of the maximum statutory penalty in the administrative
complaint, or elsewhere when accompanied by an express demand for a
lesser amount. Fees and expenses awarded under this paragraph shall be
paid only as a consequence of appropriations provided in advance.
* * * * *
(d) An award under this part will be reduced or denied if the
Office's position was substantially justified in law and fact, if the
applicant has unduly or unreasonably protracted the proceeding, if the
applicant has falsified the application (including documentation) or
net worth exhibit, or if special circumstances make the award unjust.
Sec. 2610.107 [Amended]
5. Section 2610.107 is amended by removing the dollar amount
``$75.00'' in the first sentence of paragraph (b) and adding in its
place the dollar amount ``$125.00.''
Sec. 2610.108 [Amended]
6. Section 2610.108 is amended by:
a. Revising the heading to read ``Rulemaking on maximum rate for
attorney and agent fees.'';
b. Amending the first sentence of paragraph (a) by adding the words
``or agents'' between the words ``attorneys'' and ``qualified'' in the
parentheses, adding the words ``or agent'' between the words
``attorney'' and ``fees'' outside the parentheses, and by removing the
dollar amount ``$75.00'' and adding in its place the dollar amount
``$125.00.''; and
c. Amending the first sentence of paragraph (b) by adding the words
``or agent'' between the words ``attorney'' and ``fees''.
7. Section 2610.201 is amended by removing the last sentence of
paragraph (f) and by revising paragraph (a) and the introductory text
of paragraph (b) to read as follows:
Sec. 2610.201 Contents of application.
(a) An application for an award of fees and expenses under the Act
shall identify the applicant and the proceeding for which an award is
sought. Unless the applicant is an individual, the application shall
further state the number of employees of the applicant and describe
briefly the type and purpose of its organization or business. The
application shall also:
(1) Show that the applicant has prevailed and identify the position
of the Office in the proceeding that the applicant alleges was not
substantially justified; or
(2) Show that the demand by the Office in the proceeding was
substantially in excess of, and was unreasonable when compared with,
the decision in the proceeding.
(b) The application shall also include, for purposes of
Sec. 2610.106 (a) or (b), a statement that the applicant's net worth
does not exceed $2,000,000 (for individuals) or $7,000,000 (for all
other applicants, including their affiliates) or alternatively, for
purposes of Sec. 2610.106(b) only, a declaration that the applicant is
a small entity as defined in 5 U.S.C. 601. However, an applicant may
omit the statement concerning its net worth if:
* * * * *
8. Section 2610.204 is amended by revising paragraph (a) and the
first sentence of paragraph (c) to read as follows:
Sec. 2610.204 When an application may be filed.
(a) An application may be filed whenever the applicant has
prevailed in the proceeding or in a significant and discrete
substantive portion of the proceeding. An application may also be filed
when the demand of the Office is substantially in excess of the
decision in the proceeding and is unreasonable when compared with such
decision. In no case may an application be filed later than 30 days
after the Office of Government Ethics' final disposition of the
proceeding.
* * * * *
(c) If review or reconsideration is sought or taken of a decision
as to which an applicant believes it has prevailed or has been
subjected to a demand from the Office substantially in excess of the
decision in the adversary adjudication and unreasonable when compared
to that decision, proceedings for the award of fees shall be stayed
pending final disposition of the underlying controversy. * * *
[FR Doc. 98-6986 Filed 3-17-98; 8:45 am]
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