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.

Rules and Regulations Federal Register

11667 

Vol. 76, No. 42 

Thursday, March 3, 2011 

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: 

adam.hermann@ogc.usda.gov. 

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 


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11668 Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Rules and Regulations 

1 12 U.S.C. 4513. 

2Sections 1302 and 1312 of HERA. 

3Each Bank is generally referred to by the name 

of the city in which it is located. The twelve Banks 

are located in: Boston, New York, Pittsburgh, 

Atlanta, Cincinnati, Indianapolis, Chicago, Des 

Moines, Dallas, Topeka, San Francisco, and Seattle. 

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 

■ 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 

■ 2. Amend § 1.186 by revising 

paragraph (b) to read as follows: 

§ 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 § 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. 

* * * * * 

■ 3. Amend § 1.187 by revising 

paragraph (a) to read as follows: 

§ 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] 

BILLING CODE 3410–90–P 

FEDERAL HOUSING FINANCE BOARD 

12 CFR Part 932 

FEDERAL HOUSING FINANCE 

AGENCY 

12 CFR Part 1225 

RIN 2590–AA01 

Minimum Capital 

AGENCY: Federal Housing Finance Board 

and Federal Housing Finance Agency. 

ACTION: Final rule. 

SUMMARY: The Federal Housing Finance 

Agency (FHFA) is issuing a final rule to 

implement a provision of the Federal 

Housing Enterprises Financial Safety 

and Soundness Act, as amended, that 

provides for a temporary increase in the 

minimum capital level for the entities 

regulated by FHFA—the Federal 

National Mortgage Association, the 

Federal Home Loan Mortgage 

Corporation and the Federal Home Loan 

Banks. The final rule establishes 

standards for imposing a temporary 

increase and for rescinding such an 

increase, and a time frame for review of 

such an increase. 

DATES: This rule is effective April 4, 

2011. 

FOR FURTHER INFORMATION CONTACT: 

Christopher T. Curtis, Senior Deputy 

General Counsel, 

Christopher.Curtis@fhfa.gov, (202) 414– 

8947, or Jamie Schwing, Associate 

General Counsel, 

Jamie.Schwing@fhfa.gov, (202) 414– 

3787, (not toll-free numbers), Federal 

Housing Finance Agency, Fourth Floor, 

1700 G Street, NW., Washington, DC 

20552. The telephone number for the 

Telecommunications Device for the Deaf 

is (800) 877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Establishment of the Federal Housing 

Finance Agency 

The Housing and Economic Recovery 

Act of 2008 (HERA), Public Law 110– 

289, 122 Stat. 2654, amended the 

Federal Housing Enterprises Financial 

Safety and Soundness Act of 1992 (12 

U.S.C. 4501 et seq.) (Safety and 

Soundness Act) to establish FHFA as an 

independent agency of the Federal 

Government. FHFA was established to 

oversee the operations of the Federal 

National Mortgage Association, the 

Federal Home Loan Mortgage 

Corporation (collectively, Enterprises), 

and the Federal Home Loan Banks 

(Banks) (collectively, regulated entities). 

FHFA is to ensure that the regulated 

entities operate in a safe and sound 

manner including being capitalized 

adequately; that their operations foster 

liquid, efficient, competitive and 

resilient national housing finance 

markets; that they comply with the 

Safety and Soundness Act and their 

authorizing statutes, and with rules, 

regulations, guidelines and orders 

issued under those statutes; that they 

carry out their missions through 

activities authorized and consistent 

with the Safety and Soundness Act and 

their authorizing statutes; and that the 

activities and operations of the entities 

are consistent with the public interest.1

The regulated entities continue to 

operate under regulations promulgated 

by the Office of Federal Housing 

Enterprise Oversight and the Federal 

Housing Finance Board, and the 

relevant regulations of the Department 

of Housing and Urban Development, 

until such time as the existing 

regulations are supplanted by 

regulations promulgated by FHFA.2

B. The Bank System Generally 

The twelve Banks are 

instrumentalities of the United States 

organized under the Federal Home Loan 

Bank Act (Bank Act).3 See 12 U.S.C. 

1423, 1432(a). The Banks are 

cooperatives: Only members of a Bank 

may purchase the capital stock of a 

Bank, and only members or certain 

eligible housing associates (such as state 

housing finance agencies) may obtain 

access to secured loans, known as 

advances, or other products provided by 


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