[Federal Register: July 28, 1995 (Volume 60, Number 145)] [Rules and Regulations] [Page 38665-38666] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr28jy95-1] ======================================================================== Rules and Regulations Federal Register ________________________________________________________________________ This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week. ======================================================================== [[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. ----------------------------------------------------------------------- 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] BILLING CODE 6345-01-U