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

26731

Vol. 65, No. 90

Tuesday, May 9, 2000

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT

Office of Federal Housing Enterprise

Oversight

12 CFR Part 1735

RIN 2550–AA08

Implementation of the Equal Access to

Justice Act

AGENCY: Office of Federal Housing

Enterprise Oversight, HUD.

ACTION: Final regulation.

SUMMARY: The Office of Federal Housing

Enterprise Oversight (OFHEO) is

publishing a final regulation that

implements the Equal Access to Justice

Act (Act). The Act provides for the

award of fees and other expenses to

eligible individuals and entities that are

parties to adversary adjudications before

the Federal government. The regulation

establishes procedures for the filing and

consideration of applications for awards

of fees and expenses in connection with

adversary adjudications before OFHEO.

DATES: This final regulation is effective

June 8, 2000.

FOR FURTHER INFORMATION CONTACT:

Isabella W. Sammons, Associate General

Counsel, telephone (202) 414–3790, (not

a toll-free number), Office of Federal

Housing Enterprise Oversight, 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: The Office

of Federal Housing Enterprise Oversight

(OFHEO) published a proposed

regulation at 65 FR 7312 on February

14, 2000, that would implement the

Equal Access to Justice Act (Act), 5

U.S.C. 504. OFHEO requested comments

on the proposed regulation but did not

receive any. Accordingly, the proposed

regulation is published as a final

regulation without change.

Background

The Act provides that eligible

individuals and entities that are parties

to adversary adjudications before

Federal agencies may file an application

for an award of fees and other expenses.

Eligible parties may receive an award

for fees and other expenses incurred by

them in connection with an adversary

adjudication before OFHEO if they

prevail over OFHEO, unless the position

of OFHEO in the adversary adjudication

was substantially justified. Eligible

parties may also receive an award for

fees and other expenses incurred by

them in defending against a demand by

OFHEO if the demand of OFHEO was

substantially in excess of the decision in

the adversary adjudication and was

unreasonable when compared with such

decision.

The Act requires that OFHEO and

other Federal agencies establish

procedures for the filing and

consideration of applications for an

award of fees and other expenses.

Subpart A of the final regulation sets

forth definitions, eligibility

requirements, standards for awards, and

allowable fees and expenses. Subpart B

describes the information that must be

included in an application for award

and Subpart C provides the procedures

for filing and consideration of an

application for award.

The provisions of the final regulation

reflect the 1996 amendments to the Act

that were enacted pursuant to Pub. L.

104–121, 110 Stat. 862 (1996).

Furthermore, to the extent appropriate,

the provisions of the final regulation are

substantially similar to the provisions of

the Model Rules for Implementation of

the Equal Access to Justice Act in

Agency Proceedings, 1 CFR part 315

(1986) (51 FR 16659—16669 (May 6,

1986)).

Regulatory Impact

Executive Order 12866, Regulatory

Planning and Review

The final regulation is not classified

as a significant rule under Executive

Order 12866 because it will not result in

an annual effect on the economy of $100

million or more or a major increase in

costs or prices for consumers,

individual industries, Federal, State, or

local government agencies, or

geographic regions; or have significant

adverse effects on competition,

employment, investment, productivity,

innovation, or on the ability of United

States-based enterprises to compete

with foreign-based enterprises in

domestic or foreign markets.

Accordingly, no regulatory impact

assessment is required and this final

regulation has not been submitted to the

Office of Management and Budget for

review.

Regulatory Flexibility Act

The Regulatory Flexibility Act (5

U.S.C. 601 et seq.) requires that a

regulation that has a significant

economic impact on a substantial

number of small entities, small

businesses, or small organizations must

include an initial regulatory flexibility

analysis describing the regulation’s

impact on small entities. Such an

analysis need not be undertaken if the

agency has certified that the regulation

will not have a significant economic

impact on a substantial number of small

entities. 5 U.S.C. 605(b). OFHEO has

considered the impact of the final

regulation under the Regulatory

Flexibility Act. The General Counsel of

OFHEO certifies that the final

regulation, if adopted, is not likely to

have a significant economic impact on

a substantial number of small business

entities because the number of

applications for awards by small entities

is expected to be extremely small.

Paperwork Reduction Act

The final regulation does not contain

any information collection requirements

that require the approval of the Office of

Management and Budget under the

Paperwork Reduction Act (44 U.S.C.

3501 et seq.).

Unfunded Mandates Reform Act of 1995

The final regulation does not require

the preparation of an assessment

statement in accordance with the

Unfunded Mandates Reform Act of

1995, 2 U.S.C. 1531. Assessment

statements are not required for

regulations that incorporate

requirements specifically set forth in

law. As explained in the preamble, the

final regulation implements specific

statutory requirements. In addition, the

final regulation does not include a

Federal mandate that may result in the

expenditure by State, local, and tribal

governments, in the aggregate, or by the

26732 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

private sector, of $100 million or more

(adjusted annually for inflation) in any

one year.

List of Subjects in 12 CFR Part 1735

Administrative practice and

procedure, Equal access to justice.

Accordingly, for the reasons stated in

the preamble, OFHEO adds part 1735 to

chapter XVII of title 12 of the Code of

Federal Regulations as follows:

PART 1735—IMPLEMENTATION OF

THE EQUAL ACCESS TO JUSTICE

ACT

Subpart A—General Provisions

Sec.

1735.1 Purpose and scope.

1735.2 Definitions.

1735.3 Eligible parties.

1735.4 Standards for awards.

1735.5 Allowable fees and expenses.

1735.6 Rulemaking on maximum rate for

fees.

1735.7 Awards against other agencies.

1735.8–1735.9 [Reserved]

Subpart B—Information Required from

Applicants

1735.10 Contents of the application for

award.

1735.11 Request for confidentiality of net

worth exhibit.

1735.12 Documentation of fees and

expenses.

1735.13–1735.19 [Reserved]

Subpart C—Procedures for Filing and

Consideration of the Application for Award

1735.20 Filing and service of the

application for award and related papers.

1735.21 Answer to the application for

award.

1735.22 Reply to the answer.

1735.23 Comments by other parties.

1735.24 Settlement.

1735.25 Further proceedings on the

application for award.

1735.26 Decision of the adjudicative officer.

1735.27 Review by OFHEO.

1735.28 Judicial review.

1735.29 Payment of award.

Authority: 5 U.S.C. 504(c)(1).

Subpart A—General Provisions

§ 1735.1 Purpose and scope.

(a) This part implements the Equal

Access to Justice Act, 5 U.S.C. 504, by

establishing procedures for the filing

and consideration of applications for

award of fees and other expenses to

eligible individuals and entities who are

parties to adversary adjudications before

OFHEO.

(b) This part applies to the award of

fees and other expenses in connection

with adversary adjudications before

OFHEO. However, if a court reviews the

underlying decision of the adversary

adjudication, an award for fees and

other expenses may be made only

pursuant to 28 U.S.C. 2412(d)(3).

§ 1735.2 Definitions.

(a) Adjudicative officer means the

official who presided at the underlying

adversary adjudication, without regard

to whether the official is designated as

a hearing examiner, administrative law

judge, administrative judge, or

otherwise.

(b) Adversary adjudication means an

administrative proceeding conducted by

OFHEO under 5 U.S.C. 554 in which the

position of OFHEO or any other agency

of the United States is represented by

counsel or otherwise, including but not

limited to an adjudication conducted

under 12 CFR part 1780. Any issue as

to whether an administrative proceeding

is an adversary adjudication for

purposes of this part will be an issue for

resolution in the proceeding on the

application for award.

(c) Affiliate means an individual,

corporation, or other entity that directly

or indirectly controls or owns a majority

of the voting shares or other interests of

the party, or any corporation or other

entity of which the party directly or

indirectly owns or controls a majority of

the voting shares or other interest,

unless the adjudicative officer

determines that it would be unjust and

contrary to the purpose of the Equal

Access to Justice Act in light of the

actual relationship between the

affiliated entities to consider them to be

affiliates for purposes of this part.

(d) Agency counsel means the

attorney or attorneys designated by the

General Counsel of OFHEO to represent

OFHEO in an adversary adjudication

covered by this part.

(e) Demand of OFHEO means the

express demand of OFHEO that led to

the adversary adjudication, but does not

include a recitation by OFHEO of the

maximum statutory penalty when

accompanied by an express demand for

a lesser amount.

(f) Fees and other expenses include

reasonable attorney or agent fees, the

reasonable expenses of expert witnesses,

and the reasonable cost of any study,

analysis, engineering report, test, or

project that is found by the agency to be

necessary for the preparation of the

eligible party’s case.

(g) Final disposition means the date

on which a decision or order disposing

of the merits of the adversary

adjudication or any other complete

resolution of the adversary adjudication,

such as a settlement or voluntary

dismissal, becomes final and

unappealable, both within the agency

and to the courts.

(h) OFHEO means the Office of

Federal Housing Enterprise Oversight.

(i) Party means an individual,

partnership, corporation, association, or

public or private organization that is

named or admitted as a party, that is

admitted as a party for limited purposes,

or that is properly seeking and entitled

as of right to be admitted as a party in

an adversary adjudication.

(j) Position of OFHEO means the

position taken by OFHEO in the

adversary adjudication, including the

action or failure to act by OFHEO upon

which the adversary adjudication was

based.

§ 1735.3 Eligible parties.

(a) To be eligible for an award of fees

and other expenses under § 1735.4(a), a

party must be a small entity as defined

in 5 U.S.C. 601.

(b)(1) To be eligible for an award of

fees and other expenses for prevailing

parties under § 1735.5(b), a party must

be one of the following:

(i) An individual who has a net worth

of not more than $2 million;

(ii) The sole owner of an

unincorporated business who has a net

worth of not more than $7 million,

including both personal and business

interest, and not more than 500

employees; however, a party who owns

an unincorporated business will be

considered to be an ‘‘individual’’ rather

than the ‘‘sole owner of an

unincorporated business’’ if the issues

on which the party prevails are related

primarily to personal interests rather

than to business interests.

(iii) A charitable or other tax-exempt

organization described in section

501(c)(3) of the Internal Revenue Code,

26 U.S.C. 501(c)(3), with not more than

500 employees;

(iv) A cooperative association as

defined in section 15(a) of the

Agricultural Marketing Act, 12 U.S.C.

1141j(a), with not more than 500

employees; or

(v) Any other partnership,

corporation, association, unit of local

government, or organization that has a

net worth of not more than $7 million

and not more than 500 employees.

(2) For purposes of eligibility under

paragraph (b) of this section:

(i) The employees of a party include

all persons who regularly perform

services for remuneration for the party,

under the party’s direction and control.

Part-time employees shall be included

on a proportional basis.

(ii) The net worth and number of

employees of the party and its affiliates

shall be aggregated to determine

eligibility.

(iii) The net worth and number of

employees of a party shall be

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26733

determined as of the date the underlying

adversary adjudication was initiated.

(c) A party that participates in an

adversary adjudication primarily on

behalf of one or more entities that

would be ineligible for an award is not

itself eligible for an award.

§ 1735.4 Standards for awards.

(a) An eligible party that files an

application for award of fees and other

expenses in accordance with this part

shall receive an award of fees and other

expenses related to defending against a

demand of OFHEO if the demand was

in excess of the decision in the

underlying adversary adjudication and

was unreasonable when compared with

the 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 unless special circumstances make an

award unjust. The burden of proof that

the demand of OFHEO was substantially

in excess of the decision and is

unreasonable when compared with the

decision is on the eligible party.

(b) An eligible party that submits an

application for award in accordance

with this part shall receive an award of

fees and other expenses incurred in

connection with an adversary

adjudication in which it prevailed or in

a significant and discrete substantive

portion of the adversary adjudication in

which it prevailed, unless the position

of OFHEO in the adversary adjudication

was substantially justified or special

circumstances make an award unjust.

OFHEO has the burden of proof to show

that its position was substantially

justified and may do so by showing that

its position was reasonable in law and

in fact.

§ 1735.5 Allowable fees and expenses.

(a) Awards of fees and other expenses

shall be based on rates customarily

charged by persons engaged in the

business of acting as attorneys, agents,

and expert witnesses, even if the

services were made available without

charge or at a reduced rate to the party.

However, except as provided in

§ 1735.6, an award for the fee of an

attorney or agent may not exceed $125

per hour and an award to compensate

an expert witness may not exceed the

highest rate at which OFHEO pays

expert witnesses. However, an award

may also include the reasonable

expenses of the attorney, agent, or

expert witness as a separate item if he

or she ordinarily charges clients

separately for such expenses.

(b) In determining the reasonableness

of the fee sought for an attorney, agent,

or expert witness, the adjudicative

officer shall consider the following:

(1) If the attorney, agent, or expert

witness is in private practice, his or her

customary fees for similar services; or,

if the attorney, agent, or expert witness

is an employee of the eligible party, the

fully allocated costs of the services;

(2) The prevailing rate for similar

services in the community in which the

attorney, agent, or expert witness

ordinarily performs services;

(3) The time actually spent in the

representation of the eligible party;

(4) The time reasonably spent in light

of the difficulty or complexity of the

issues in the adversary adjudication;

and

(5) Such other factors as may bear on

the value of the services provided.

(c) In determining the reasonable cost

of any study, analysis, engineering

report, test, project, or similar matter

prepared on behalf of a party, the

adjudicative officer shall consider the

prevailing rate for similar services in the

community in which the services were

performed.

(d) Fees and other expenses incurred

before the date on which an adversary

adjudication was initiated will be

awarded only if the eligible party can

demonstrate that they were reasonably

incurred in preparation for the

adversary adjudication.

§ 1735.6 Rulemaking on maximum rate for

fees.

If warranted by an increase in the cost

of living or by special circumstances,

OFHEO may adopt regulations

providing for an award of attorney or

agent fees at a rate higher than $125 per

hour in adversary adjudications covered

by this part. Special circumstances

include the limited availability of

attorneys or agents who are qualified to

handle certain types of adversary

adjudications. OFHEO will conduct any

rulemaking proceedings for this purpose

under the informal rulemaking

procedures of the Administrative

Procedures Act, 5 U.S.C. 553.

§ 1735.7 Awards against other agencies.

If another agency of the United States

participates in an adversary

adjudication before OFHEO and takes a

position that was not substantially

justified, the award or appropriate

portion of the award to an eligible party

that prevailed over that agency shall be

made against that agency.

§§ 1735.8—1735.9 [Reserved].

Subpart B—Information Required from

Applicants

§ 1735.10 Contents of the application for

award.

(a) An application for award of fees

and other expenses under either

§ 1735.4(a) and § 1735.4(b) shall:

(1) Identify the applicant and the

adversary adjudication for which an

award is sought;

(2) State the amount of fees and other

expenses for which an award is sought;

(3) Provide the statements and

documentation required by paragraph

(b) or (c) of this section and § 1735.12

and any additional information required

by the adjudicative officer; and

(4) Be signed by the applicant or an

authorized officer or attorney of the

applicant and contain or be

accompanied by a written verification

under oath or under penalty of perjury

that the information provided in the

application is true and correct.

(b) An application for award under

§ 1735.4(a) shall show that the demand

of OFHEO was substantially in excess

of, and was unreasonable when

compared to, the decision in the

underlying adversary adjudication

under the facts and circumstances of the

case. It shall also show that the

applicant is a small entity as defined in

5 U.S.C. 601.

(c) An application for award under

§ 1735.4(b) shall:

(1) Show that the applicant has

prevailed in a significant and discrete

substantive portion of the underlying

adversary adjudication and identify the

position of OFHEO in the adversary

adjudication that the applicant alleges

was not substantially justified;

(2) State the number of employees of

the applicant and describe briefly the

type and purposes of its organization or

business (if the applicant is not an

individual);

(3) State that the net worth of the

applicant does not exceed $2 million, if

the applicant is an individual; or for all

other applicants, state that the net worth

of the applicant and its affiliates, if any,

does not exceed $7 million; and

(4) Include one of the following:

(i) A detailed exhibit showing the net

worth (net worth exhibit) of the

applicant and its affiliates, if any, when

the underlying adversary adjudication

was initiated. The net worth exhibit

may be in any form convenient to the

applicant as long as the net worth

exhibit provides full disclosure of the

assets and liabilities of the applicant

and its affiliates, if any, and is sufficient

to determine whether the applicant

qualifies as an eligible party;

26734 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

(ii) A copy of a ruling by the Internal

Revenue Service that shows that the

applicant qualifies as an organization

described in section 501(c)(3) of the

Internal Revenue Code, 26 U.S.C.

501(c)(3); or in the case of a tax-exempt

organization not required to obtain a

ruling from the Internal Revenue

Service on its exempt status, a statement

that describes the basis for the belief

that the applicant qualifies under such

section; or

(iii) A statement that the applicant is

a cooperative association as defined in

section 15(a) of the Agricultural

Marketing Act, 12 U.S.C. 1141j(a).

§ 1735.11 Request for confidentiality of net

worth exhibit.

(a) The net worth exhibit described in

§ 1735.10(c)(4)(i) shall be included in

the public record of the proceeding for

the award of fees and other expenses,

except if confidential treatment is

requested and granted as provided in

paragraph (b) of this section.

(b)(1) The applicant may request

confidential treatment of the

information in the net worth exhibit by

filing a motion directly with the

adjudicative officer in a sealed envelope

labeled ‘‘Confidential Financial

Information.’’ If the adjudicative officer

finds that the information should be

withheld from public disclosure, any

request to inspect or copy the

information by another party or the

public shall be resolved in accordance

with the Freedom of Information Act, 5

U.S.C. 552b, and the Releasing

Information regulation at 12 CFR part

1710.

(2) The motion shall:

(i) Include a copy of the portion of the

net worth exhibit sought to be withheld;

(ii) Describe the information sought to

be withheld; and

(iii) Explain why the information is

exempt from disclosure under the

Freedom of Information Act and why

public disclosure of the information

would adversely affect the applicant

and is not in the public’s interest.

(iv) Be served on agency counsel but

need not be served on any other party

to the proceeding.

§ 1735.12 Documentation of fees and

expenses.

(a) The application for award shall be

accompanied by full and itemized

documentation of the fees and other

expenses for which an award is sought.

The adjudicative officer may require the

applicant to provide vouchers, receipts,

logs, or other documentation for any

fees or expenses claimed.

(b) A separate itemized statement

shall be submitted for each entity or

individual whose services are covered

by the application. Each itemized

statement shall include:

(1) The hours spent by each entity or

individual;

(2) A description of the specific

services performed and the rates at

which each fee has been computed; and

(3) Any expenses for which

reimbursement is sought, the total

amount claimed, and the total amount

paid or payable by the applicant or by

any other person or entity.

§§ 1735.13–1735.19 [Reserved].

Subpart C—Procedures for Filing and

Consideration of the Application for

Award

§ 1735.20 Filing and service of the

application for award and related papers.

(a) An application for an award of fees

and other expenses must be filed no

later than 30 days after the final

disposition of the underlying adversary

adjudication.

(b) An application for award and

other papers related to the proceedings

on the application for award shall be

filed and served on all parties in the

same manner as papers are filed and

served in the underlying adversary

adjudication, except as otherwise

provided in this part.

(c) The computation of time for filing

and service of the application of award

and other papers shall be computed in

the same manner as in the underlying

adversary adjudication.

§ 1735.21 Answer to the application for

award.

(a) Agency counsel shall file an

answer within 30 days after service of

an application for award of fees and

other expenses except as provided in

paragraphs (b) and (c) of this section. In

the answer, agency counsel shall

explain any objections to the award

requested and identify the facts relied

upon to support the objections. If any of

the alleged facts are not already in the

record of the underlying adversary

adjudication, agency counsel shall

include with the answer either

supporting affidavits or a request for

further proceedings under § 1735.25.

(b) If agency counsel and the

applicant believe that the issues in the

application for award can be settled,

they may jointly file a statement of their

intent to negotiate a settlement. The

filing of this statement shall extend the

time for filing an answer for an

additional 30 days. Upon request by

agency counsel and the applicant, the

adjudicative officer may grant for good

cause further time extensions.

(c) Agency counsel may request that

the adjudicative officer extend the time

period for filing an answer. If agency

counsel does not answer or otherwise

does not contest or settle the application

for award within the 30-day period or

the extended time period, the

adjudicative officer may make an award

of fees and other expenses upon a

satisfactory showing of entitlement by

the applicant.

§ 1735.22 Reply to the answer.

Within 15 days after service of an

answer, the applicant may file a reply.

If the reply is based on any alleged facts

not already in the record of the

underlying adversary adjudication, the

applicant shall include with the reply

either supporting affidavits or a request

for further proceedings under § 1735.25.

§ 1735.23 Comments by other parties.

Any party to the underlying adversary

adjudication other than the applicant

and agency counsel may file comments

on an application for award within 30

calendar days after it is served, or on an

answer within 15 calendar days after it

is served. A commenting party may not

participate further in proceedings on the

application unless the adjudicative

officer determines that the public

interest requires such participation in

order to permit full exploration of

matters raised in the comments.

§ 1735.24 Settlement.

The applicant and agency counsel

may agree on a proposed settlement of

an award before the final decision on

the application for award is made, either

in connection with a settlement of the

underlying adversary adjudication or

after the underlying adversary

adjudication has been concluded. If the

eligible party and agency counsel agree

on a proposed settlement of an award

before an application for award has been

filed, the application shall be filed with

the proposed settlement.

§ 1735.25 Further proceedings on the

application for award.

(a) On request of either the applicant

or agency counsel, on the adjudicative

officer’s own initiative, or as requested

by the Director of OFHEO under

§ 1735.27, the adjudicative officer may

order further proceedings, such as an

informal conference, oral argument,

additional written submissions, or, as to

issues other than substantial

justification (such as the applicant’s

eligibility or substantiation of fees and

expenses), pertinent discovery or an

evidential hearing. Such further

proceedings shall be held only when

necessary for full and fair resolution of

the issues arising from the application

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26735

for award and shall be conducted as

promptly as possible. The issue as to

whether the position of OFHEO in the

underlying adversary adjudication was

substantially justified shall be

determined on the basis of the whole

administrative record that was made in

the underlying adversary adjudication.

(b) A request that the adjudicative

officer order further proceedings under

this section shall specifically identify

the information sought on the disputed

issues and shall explain why the

additional proceedings are necessary to

resolve the issues.

§ 1735.26 Decision of the adjudicative

officer.

(a) The adjudicative officer shall make

the initial decision on the basis of the

written record, except if further

proceedings are ordered under

§ 1735.25.

(b) The adjudicative officer shall issue

a written initial decision on the

application for award within 30 days

after completion of proceedings on the

application. The initial decision shall

become the final decision of OFHEO

after 30 days from the day it was issued,

unless review is ordered under

§ 1735.27.

(c) In all initial decisions, the

adjudicative officer shall include

findings and conclusions with respect to

the applicant’s eligibility and an

explanation of the reasons for any

difference between the amount

requested by the applicant and the

amount awarded. If the applicant has

sought an award against more than one

agency, the adjudicative officer shall

also include findings and conclusions

with respect to the allocation of

payment of any award made.

(d) In initial decisions on applications

filed pursuant to § 1735.4(a), the

adjudicative officer shall include

findings and conclusions as to whether

OFHEO made a demand that was

substantially in excess of the decision in

the underlying adversary adjudication

and that was unreasonable when

compared with that decision; and, if at

issue, whether the applicant has

committed a willful violation of the law

or otherwise acted in bad faith, or

whether special circumstances would

make the award unjust.

(e) In decisions on applications filed

pursuant to § 1735.4(b), the adjudicative

officer shall include written findings

and conclusions as to whether the

applicant is a prevailing party and

whether the position of OFHEO was

substantially justified; and, if at issue,

whether the applicant unduly

protracted or delayed the underlying

adversary adjudication or whether

special circumstance make the award

unjust.

§ 1735.27 Review by OFHEO.

Within 30 days after the adjudicative

officer issues an initial decision under

§ 1735.26, either the applicant or agency

counsel may request the Director of

OFHEO to review the initial decision of

the adjudicative officer. The Director of

OFHEO or his or her designee may also

decide, on his or her own initiative, to

review the initial decision. Whether to

review a decision is at the discretion of

the Director of OFHEO or his or her

designee. If review is ordered, the

Director of OFHEO or his or her

designee shall issue a final decision on

the application for award or remand the

application for award to the

adjudicative officer for further

proceedings under § 1735.25.

§ 1735.28 Judicial review.

Any party, other than the United

States, that is dissatisfied with the final

decision on an application for award of

fees and expenses under this part may

seek judicial review as provided in 5

U.S.C. 504(c)(2).

§ 1735.29 Payment of award.

To receive payment of an award of

fees and other expenses granted under

this part, the applicant shall submit a

copy of the final decision that grants the

award and a certification that the

applicant will not seek review of the

decision in the United States courts to

the Director, Office of Federal Housing

Enterprise Oversight, 1700 G Street,

NW., Washington, DC 20552. OFHEO

shall pay the amount awarded to the

applicant within 60 days of receipt of

the submission of the copy of the final

decision and the certification, unless

judicial review of the award has been

sought by any party to the proceedings.

Dated: May 2, 2000.

Armando Falcon, Jr.,

Director, Office of Federal Housing Enterprise

Oversight.

[FR Doc. 00–11524 Filed 5–8–00; 8:45 am]

BILLING CODE 4220–01–U

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 2000–CE–04–AD; Amendment

39–11715; AD 2000–09–06]

RIN 2120–AA64

Airworthiness Directives; Maule

Aerospace Technology, Inc. M–4, M–5,

M–6, M–7, MX–7, and MXT–7 Series

Airplanes and Models MT–7–235 and

M–8–235 Airplanes

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Final rule; request for

comments.

SUMMARY: This amendment adopts a

new airworthiness directive (AD) that

applies to certain Maule Aerospace

Technology, Inc. (Maule) M–4, M–5, M–

6, M–7, MX–7, and MXT–7 series

airplanes and Models MT–7–235 and

M–8–235 airplanes. This AD requires

you to inspect all NicopressTM sleeve

terminal ends for correct size

compression, with adjustment or

replacement, as necessary. This AD

results from a report of the rudder cable

slipping out of the NicopressTM sleeve

while one of the affected airplanes was

landing. The actions specified by this

AD are intended to detect and correct

improper crimping of the NicopressTM

sleeve, which could cause a control

cable to slip from the sleeve. This could

result in loss of rudder, elevator,

aileron, or flap control.

DATES: This AD becomes effective on

May 30, 2000. The Director of the

Federal Register approved the

incorporation by reference of certain

publications listed in the regulation as

of May 30, 2000.

The Federal Aviation Administration

(FAA) must receive any comments on

this rule on or before June 23, 2000.

ADDRESSES: Submit comments in

triplicate to FAA, Central Region, Office

of the Regional Counsel, Attention:

Rules Docket No. 2000–CE–04–AD, 901

Locust, Room 506, Kansas City, MO

64106.

You may get the service information

referenced in this AD from Maule

Aerospace Technology Inc., 2099

Georgia Highway 133 South, Moultrie,

GA 31768; telephone: (912) 985–2045,

facsimile: (912) 890–2402.

You may examine this information at

FAA, Central Region, Office of the

Regional Counsel, Attention: Rules

Docket No. 2000–CE–04–AD, 901

Locust, Room 506, Kansas City, MO

64106; or at the Office of the Federal