2014-02115. Equal Access to Justice Act Implementation Rule

AGENCY:

Bureau of Consumer Financial Protection.

ACTION:

Final rule.

SUMMARY:

On June 29, 2012, the Consumer Financial Protection Bureau (Bureau) published in the Federal Register an interim final rule implementing the Equal Access to Justice Act (EAJA or the Act). EAJA requires agencies that conduct adversary adjudications to award attorney fees and other litigation expenses to certain parties other than the United States in certain circumstances. EAJA also requires agencies that conduct adversary adjudications to establish procedures for the submission and consideration of applications for the award of fees and other expenses. After reviewing and considering the single public comment offered on its interim final rule, the Bureau adopts the interim final rule without change.

DATES:

This final rule is effective on March 12, 2014.

FOR FURTHER INFORMATION CONTACT:

John R. Coleman, Senior Counsel, Legal Division, Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 20552; [phone].

SUPPLEMENTARY INFORMATION:

I. Background

Originally enacted in 1980, EAJA provides that “[a]n agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust.” 5 U.S.C. 504(a)(1). The Administrative Conference of the United States (ACUS) was charged with coordination of the procedural rules adopted by various agencies to implement EAJA. To carry out this responsibility, ACUS issued model rules implementing EAJA (46 FR 32900, June 25, 1981), after receiving public comment on draft model rules (46 FR 15895, March 10, 1981). ACUS published revised model rules in 1986 that reflected the amendments Congress made when it re-authorized the Act in 1985. 51 FR 16659 (May 6, 1986), previously codified at 1 CFR part 315 (1995); see Administrative Conference of the U.S., Federal Administrative Procedure Sourcebook at 419 (2d ed. 1992). ACUS did not publish model rules reflecting amendments to the Act made since 1985 before ACUS was temporarily defunded in 1996.

When drafting the interim final rule, the Bureau used the 1986 ACUS model rules as a point of departure, modifying them to put them in plain language, to reflect more recent amendments to the Act, and to make certain changes the Bureau believed were warranted for reasons explained in the section-by-section analysis published with the interim final rule.

On June 29, 2012, the Bureau published its interim final rule implementing EAJA with a request for comment. 77 FR 39117. The interim final rule described each section of the rule and explained the basis of the rule with reference to the ACUS model rules, or those of other agencies, as appropriate. The comment period on the interim final rule ended on August 28, 2012. After reviewing and considering the single public comment offered, the Bureau is now promulgating its final rule implementing EAJA.

II. Legal Authority

The Bureau promulgates the final rule pursuant to 5 U.S.C. 504(c)(1).

III. Public Comment on the Interim Final Rule

In response to the interim final rule, the Bureau received one letter from an individual consumer. The comment letter from the consumer did not contain any specific comments or suggestions pertaining to the interim final rule. Accordingly, the Bureau is adopting the interim final rule without change.

IV. Regulatory Requirements

As noted in publishing the Interim Final Rule, under the Administrative Procedure Act, 5 U.S.C. 553(b), notice and comment is not required for rules of agency organization, procedure, or practice. As discussed in the preamble to the Interim Final Rule, the Bureau confirms its finding that this is a procedural rule for which notice and comment is not required. Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis. 5 U.S.C. 603(a), 604(a).

V. Paperwork Reduction Act

According to the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) the Bureau may not conduct or sponsor a collection of information as defined by the PRA and, notwithstanding any other provisions of law, persons are not required to respond to a collection of information unless it displays a current valid Office of Management and Budget (OMB) control number. The collections of information contained in this rule, and identified as such, have been approved by OMB and assigned the control number 3170-0040.

A. Information Collection Requirements

EAJA provides for payment of fees and expenses to eligible parties who have prevailed against the Bureau in certain administrative proceedings. In order to obtain an award, the statute and associated regulations (12 CFR part 1071) require the filing of an application that shows that the party is a prevailing party and is eligible to receive an award under the Act. The Bureau regulations implementing the EAJA require applicants to submit certain information in their applications, as detailed in 12 CFR part 1071, subparts B, C. The Bureau estimates that as many as 3 applications may be filed annually with the Bureau and that it will take on average about 5 hours to complete and file an application for an award in accordance with the requirements of 12 CFR part 1071, subparts B, C, for a total estimated annual burden of 15 hours.

B. Comments

The Bureau published a 60-day Federal Register notice on August 23, 2013 (78 FR 52513). Comments were solicited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the Bureau, including whether the information shall have practical utility; (b) The accuracy of the Bureau's estimate of the burden of the collection of information, including the validity of the methods and the assumptions used; (c) Ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. The Bureau received no comments in response to this notice. The Bureau has a continuing interest in the public's opinions of its collections of information. At any time, comments regarding the burden estimate, or any other aspect of this collection of information, including suggestions for reducing the burden, may be sent to the Bureau at the Consumer Financial Protection Bureau (Attention: PRA Office), 1700 G Street NW., Washington, DC 20552, or by the Internet to [e-mail].

List of Subjects in 12 CFR Part 1071

• Administrative practice and procedure
• Banks
• Banking
• Consumer protection
• Credit
• Credit unions
• Equal access to justice
• Law enforcement
• National banks
• Savings associations

Authority and Issuance

Accordingly, for the reasons set forth above, under the authority of 5 U.S.C. 504, the interim final rule establishing 12 CFR part 1071 published at 77 FR 39117, June 29, 2012, is adopted as a final rule without change.

Richard Cordray,

Director, Bureau of Consumer Financial Protection.