[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38665-38666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18613]
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Rules and Regulations
Federal Register
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to and codified in the Code of Federal Regulations, which is published
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Federal Register / Vol. 60, No. 145 / Friday, July 28, 1995 / Rules
and Regulations
[[Page 38665]]
OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2610
RIN 3209-AA19
Implementation of the Equal Access to Justice Act
AGENCY: Office of Government Ethics (OGE).
ACTION: Final rule.
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SUMMARY: The Office of Government Ethics is adopting as final, with one
correction, a previously published interim regulation establishing
procedures, in accordance with the Equal Access to Justice Act and
guidance from the Administrative Conference of the United States, for
the award of attorney fees and other expenses to eligible individuals
and entities who are parties to certain administrative proceedings
(called ``adversary adjudications'') before the Office of Government
Ethics. This regulation describes the parties eligible for awards and
the proceedings which are covered. The rule also explains how to apply
for awards, and the procedures and standards which the Office of
Government Ethics will use to make awards.
EFFECTIVE DATE: September 26, 1995.
FOR FURTHER INFORMATION CONTACT: Janet K. Roell, Office of Government
Ethics, telephone 202-523-5757, FAX 202-523-6325.
SUPPLEMENTARY INFORMATION: In this rulemaking document, the Office of
Government Ethics is adopting as a final regulation, with correction of
one typographical error, its previously published interim regulation
under the Equal Access to Justice Act (EAJA), 5 U.S.C. 504. See 57 FR
33267-33272 (July 28, 1992), as corrected at 59 FR 34755 (July 7,
1994). The EAJA requires every agency to establish, by regulation,
procedures for the submission and consideration of applications by
eligible prevailing private parties for an award of fees and expenses
incurred in connection with adversary adjudications before the agency.
The interim OGE regulation (5 CFR part 2610), generally followed, with
certain modifications, the final revised model rule issued on May 6,
1986 (51 FR 16659-16669) by the Administrative Conference of the United
States pursuant to its consultative role under EAJA.
A 60-day comment period was provided in the interim regulation, and
OGE received two comments. One comment addressed the appealability of
the Board of Contract Appeals (BCA) decisions by the Director of the
Office. The other comment addressed the fees that attorneys may be
awarded when representing someone under the EAJA. The first commentator
questioned whether a decision of a BCA should be reviewable by the OGE
Director. He stated that all decisions of BCAs are autonomous and
should remain so. After reviewing this matter, OGE does not believe any
change to the EAJA regulation is needed. The Office of Government
Ethics, which is a small agency, does not have a BCA and would have to
request that agency's BCA hearings be held by an agency with a BCA. In
this regard, OGE would coordinate with the rules and procedures
established by that BCA, including the reviewability of its decisions.
This Office notes that, to date, it has not had any EAJA claims filed
in contract or any other matters before it.
The second comment letter addressed the issue of increasing fees
for attorney representation. That commentator, citing Jones v. Lujan,
887 F.2d 1096, 1101 (D.C. Cir. 1989), suggested that OGE increase the
$75 per hour maximum attorney fee rate currently allowed in its EAJA
regulation to reflect the increases in the cost of living. The court in
the Jones case awarded the prevailing private party an increased
attorney litigation fee rate using a cost of living increase formula
under 28 U.S.C. 2412(d)(2)(A)(ii). However, the court did not order the
agency involved in that case, the Department of Interior, to change the
similar fee structure as to administrative proceedings in its EAJA
regulation and it did not. Upon review of the comment letter and case,
and after checking several other agencies' EAJA rules (most of which
likewise continue to provide for the $75 per hour maximum attorney fee
rates), OGE has decided not to amend its regulation in this regard at
this time. Section 2610.108 does provide a rulemaking mechanism for the
maximum rate for attorney fees. Moreover, an EAJA reform bill (S. 554)
was introduced earlier this year in the Senate which would, among other
things, raise the maximum rate. This Office will continue to monitor
its regulation, both as to the appropriateness of the fee rate and in
general. Again, OGE notes that so far it has not received any EAJA
applications.
Executive Order 12866
In promulgating this final regulation, the Office of Government
Ethics 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. This regulation has also been
reviewed by the Office of Management and Budget under that Executive
order.
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 regulation
will not have a significant economic impact on a substantial number of
small entities because the number of proceedings covered by the rule
will be extremely small and they will primarily affect current and
former executive branch Federal employees.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply
because this regulation does not contain 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. Section
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.
[[Page 38666]]
Approved: June 16, 1995.
Donald E. Campbell,
Deputy Director, Office of Government Ethics.
Accordingly, for the reasons set forth in the preamble, the Office
of Government Ethics is adopting the interim regulation codified at 5
CFR part 2610, published at 57 FR 33267-33272 (July 28, 1992), as
corrected at 59 FR 34755 (July 7, 1994), as a final regulation with the
following amendment:
PART 2610--IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT
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. In Sec. 2610.106, the word ``ineligible'' in the third sentence
of paragraph (a) is revised to read ``eligible''.
[FR Doc. 95-18613 Filed 7-27-95; 8:45 am]
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