48274 Federal Register / Vol. 75, No. 153 / Tuesday, August 10, 2010 / Rules and Regulations 

Subpart A—General Provisions 

§ 652.2 Definitions. 

* * * * * 

Technical service provider means an 

individual, entity, Indian Tribe, or 

public agency either: 

* * * * * 

Signed this 4th day of August 2010, in 

Washington, DC. 

Teressa Davis, 

Rulemaking Manager, Natural Resources 

Conservation Service. 

[FR Doc. 2010–19623 Filed 8–9–10; 8:45 am] 

BILLING CODE 3410–16–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 79 

[CIV Docket No. 111; AG Order No. 3185– 

2010] 

RIN 1105–AB33 

Radiation Exposure Compensation 

Act: Allowance for Costs and 

Expenses 

AGENCY: Civil Division, Department of 

Justice. 

ACTION: Final rule. 

SUMMARY: By this rule the Department of 

Justice (‘‘the Department’’) amends its 

existing regulations implementing the 

Radiation Exposure Compensation Act 

(‘‘RECA’’ or ‘‘the Act’’) to conform to the 

decision of the Tenth Circuit in the case 

of Hackwell v. United States, 491 F.3d 

1229, 1241 (10th Cir. 2007). The Tenth 

Circuit held that the plain meaning of 

‘‘services rendered’’ in section 9(a) of the 

Act revealed Congress’ unambiguous 

intent to exclude ‘‘costs incurred’’ from 

the attorney fee limitation. 

Consequently, the court invalidated 28 

CFR 79.74(b) as ‘‘contrary to the RECA’s 

plain language.’’ Accordingly, the 

Department is amending its regulation 

at § 79.74(b) to strike the language 

‘‘including costs incurred’’ from the 

agency’s limitation on payments to 

attorneys representing claimants under 

RECA. 

DATES: This rule is effective on: 

September 9, 2010. This final rule will 

apply to all claims pending with the 

Radiation Exposure Compensation Act 

Program (‘‘the Program’’) as of this date. 

FOR FURTHER INFORMATION CONTACT: 

Gerard W. Fischer (Assistant Director), 

(202) 616–4090, and Dianne S. Spellberg 

(Senior Counsel), (202) 616–4129. 

Background 

On October 5, 1990, Congress passed 

the Radiation Exposure Compensation 

Act. The Act offers an apology and 

monetary compensation to individuals 

(or their survivors) who have contracted 

certain cancers and other serious 

diseases following exposure to radiation 

released during above-ground 

atmospheric nuclear weapons tests or 

following their employment in the 

uranium production industry during 

specified periods. On July 10, 2000, the 

RECA Amendments of 2000 (‘‘the 2000 

Amendments’’) were enacted, providing 

expanded coverage to individuals who 

developed one of the compensable 

diseases in the Act, adding two new 

claimant categories (uranium millers 

and ore transporters), and lowering the 

amount of attorney’s fees from 10% of 

the lump sum compensation award to 

2% of the award in connection with the 

filing of an initial claim. 

On April 22, 2004, the Department 

promulgated revised regulations 

implementing the 2000 Amendments 

(codified as amended at 42 U.S.C. 2210 

note (2006)). Among other changes, the 

2000 Amendments revised section 9 of 

the Act to limit attorneys representing 

claimants before the program from 

receiving, ‘‘for services rendered in 

connection with the claim,’’ more than 

2 percent of the final award for the filing 

of an initial claim, and more than 10 

percent of the final award with respect 

to any claim filed prior to July 10, 2000, 

or resubmission of a denied claim. The 

Department implemented this statutory 

provision at 28 CFR 79.74(b). 

Specifically, the Department interpreted 

‘‘services rendered’’ to include ‘‘costs 

incurred’’ within the statutory 

percentage limit on the amount an 

attorney may receive from a successful 

claim. 

The Hackwell Litigation 

On April 21, 2004, plaintiff Kim 

Hackwell alleged that her co-plaintiff, a 

law firm, had refused to represent her 

because of § 79.74(b) of the 

Department’s regulation. The plaintiffs 

challenged the regulation as contrary to 

section 9(a) of the RECA statute limiting 

attorney compensation for ‘‘services 

rendered.’’ In addition, plaintiffs argued 

the regulation was an invalid 

preemption of state law, and a violation 

of the Fifth and Tenth Amendments. 

The district court dismissed the suit for 

failure to state a claim, holding that the 

regulation was a ‘‘reasonable 

interpretation’’ of the statute and that 

the Department ‘‘did not exceed its 

statutory authority in implementing 

Congress’s compensation limitation.’’ 

Hackwell v. United States, No. 04–cv– 

00827–EWN (D. Colo. Sept. 28, 2005). 

On appeal, the Tenth Circuit held that 

the plain meaning of ‘‘services rendered’’ 

in section 9(a) of the Act revealed 

Congress’s unambiguous intent to 

exclude ‘‘costs incurred’’ from the 

attorney fee limitation. Consequently, 

the court invalidated § 79.74(b) as 

‘‘contrary to the RECA’s plain language.’’ 

Hackwell v. United States, 491 F.3d 

1229, 1241 (10th Cir. 2007). The case 

was remanded to the district court for 

further proceedings. In its July 23, 2008 

remand decision, the district court 

enjoined the Department from enforcing 

§ 79.74(b) and directed that attorneys 

may recover expenses and costs from 

their clients even in regard to claims 

under the Act that are unsuccessful. 

Hackwell v. United States, No. 04–cv– 

00827–EWN, 2008 WL 2900933, at *9 

(D. Colo. July 23, 2008). 

The Department issued a Notice of 

Allowance for Costs and Expenses in 

the Federal Register on October 23, 

2008, to announce its policy consistent 

with the decision in Hackwell. See 

Notice of Allowance for Costs and 

Expenses, 73 FR 63196 (Oct. 23, 2008). 

Accordingly, the Department no longer 

enforces its regulatory provision, 28 

CFR 79.74(b), prohibiting attorneys from 

receiving reimbursement for expenses 

and costs from their clients in 

connection with claims filed under the 

Act, in addition to the statutory 

attorney’s fee. Moreover, attorneys may 

collect expenses and costs regardless of 

whether a claim is approved or denied. 

Discussion of Changes Made by This 

Rule 

This rule finalizes the Department’s 

announced intentions to revise the 

regulation published in its Notice of 

Allowance. Also, this rule conforms the 

Department’s regulation at § 79.74(b) 

with the Tenth Circuit’s decision in 

Hackwell and the policy statement 

promulgated in the Department’s 

October 23, 2008 Notice. Further, this 

rule strikes the language ‘‘including 

costs incurred’’ found in 28 CFR 

79.74(b)(1), (2) and (3), and affirmatively 

excludes costs from the limitation on 

attorney reimbursement for ‘‘services 

rendered.’’ Finally, the rule permits 

attorneys to recover costs and expenses 

regardless of whether the claim is 

approved or denied. 

Administrative Procedure Act 

This rule merely conforms 

Department regulations to the opinion 

of the Tenth Circuit and does not 

expand upon that opinion or the 

provisions of the Act. In addition, this 

rule complies with the injunction 

imposed by the District of Colorado and 

codifies the Department’s intention to 

permit attorneys to receive 

reimbursement for expenses and costs 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
Federal Register / Vol. 75, No. 153 / Tuesday, August 10, 2010 / Rules and Regulations 48275 

from their clients in connection with 

claims filed under the Act, in addition 

to the statutory attorney’s fee. For the 

foregoing reasons, the Department finds 

that it would be unnecessary and 

contrary to the public interest to provide 

for notice and comment on this rule. 

Accordingly, the Department finds that 

good cause exists for exempting this 

rule from the provisions of the 

Administrative Procedure Act requiring 

notice of proposed rulemaking (5 U.S.C. 

553(b)) and the opportunity for public 

comment (5 U.S.C. 553(d)). 

Regulatory Flexibility Act 

The Attorney General, in accordance 

with the Regulatory Flexibility Act (5 

U.S.C. 605(b)), has reviewed this 

regulation and by approving it certifies 

that this regulation will not have a 

significant economic impact on a 

substantial number of small entities for 

the following reasons: The rule affects 

claimants or beneficiaries in their 

individual capacity only. It does not 

affect small entities as that term is 

defined under 5 U.S.C. 601(6). 

Further, although the vast majority of 

claimants successfully file claims under 

the Act without the assistance of 

counsel, in the small number of claims 

where claimants desire the services of 

an attorney, this regulation will allow 

attorneys to recover expenses, which 

was previously prohibited. 

Executive Order 12866 

This regulation has been drafted and 

reviewed in accordance with Executive 

Order 12866, ‘‘Regulatory Planning and 

Review,’’ section 1(b), Principles of 

Regulation. Permitting attorneys 

representing claimants under RECA to 

recoup costs and expenses in addition 

to the statutory fee limitation will not 

lead to an annual effect of greater than 

$100,000,000 or have an adverse 

material effect on the economy or public 

welfare. Neither does this rule present 

any conflict with other federal law or 

regulation. This rule does not materially 

alter the budgetary impact of RECA 

entitlements because awards under 

RECA are set by statute and the 

Department of Justice does not 

anticipate a significant fluctuation in 

claim intake as a result of the revision. 

Moreover, the rule does not materially 

alter the rights and obligations of 

recipients of a RECA award because 

claimants retain the option to proceed 

with their RECA claim pro se. Finally, 

this action brings Department 

regulations into compliance with the 

Tenth Circuit’s decision in Hackwell 

and does not raise novel legal issues 

arising out of legal mandates. 

Accordingly, the Department has 

determined that this rule is not a 

‘‘significant regulatory action’’ under 

Executive Order 12866, section 3(f), 

Regulatory Planning and Review and 

therefore this rule has not been 

reviewed by the Office of Management 

and Budget. 

Executive Order 13132 

This regulation will not have a 

substantial direct effect on the States, on 

the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132, 

it is determined that this rule does not 

have sufficient federalism implications 

to warrant the preparation of a 

Federalism Assessment. 

Executive Order 12988 

This regulation meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988, Civil 

Justice Reform. 

Unfunded Mandates Reform Act of 1995 

This regulation will not result in the 

expenditure by state, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100,000,000 or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This rule is not a ‘‘major rule’’ as 

defined by the Small Business 

Regulatory Enforcement Fairness Act of 

1996, 5 U.S.C. 804 (2006). This rule will 

not result in an annual effect on the 

economy of $100,000,000 or more, or 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. Moreover, this rule will 

not result in a significant increase in 

costs or prices for consumers, 

individual industries, government 

agencies or geographic regions because 

potential consumers of legal counsel for 

RECA claims retain the right to file pro 

se. In addition, to the extent the rule 

enables attorneys representing claimants 

or beneficiaries to provide more 

effective counsel, the rule may reduce 

costs or prices for consumers by 

enabling claimants to submit successful 

claims more efficiently on first filing. 

Paperwork Reduction Act 

No additional information collection 

is associated with this regulatory 

revision. 

List of Subjects in 28 CFR Part 79 

Administrative practice and 

procedure, Authority delegations 

(Government agencies), Cancer, Claims, 

Radiation Exposure Compensation Act, 

Radioactive materials, Reporting and 

recordkeeping requirements, 

Underground mining, Uranium mining, 

Uranium. 

■ Accordingly, for the reasons set forth 

in the preamble, 28 CFR part 79 is 

amended as follows: 

■ 1. The authority citation for part 79 

continues to read as follows: 

Authority: Secs. 6(a), 6(i) and 6(j), Pub. L. 

101–426, 104 Stat. 920, as amended by secs. 

3(c)–(h), Pub. L. 106–245, 114 Stat. 501 and 

sec. 11007, Pub. L. 107–273, 116 Stat. 1758 

(42 U.S.C. 2210 note; 5 U.S.C. 500(b)). 

■ 2. In section 79.74, revise paragraph 

(b) to read as follows: 

§ 79.74 Representatives and attorney’s 

fees. 

(a) * * * 

(b) Fees. (1) Notwithstanding any 

contract, the attorney of a claimant or 

beneficiary, along with any assistants or 

experts retained by the attorney on 

behalf of the claimant or beneficiary, 

may not receive from a claimant or 

beneficiary any fee for services rendered 

in connection with an unsuccessful 

claim. The attorney of a claimant or 

beneficiary may recover costs incurred 

in connection with an unsuccessful 

claim. 

(2) Notwithstanding any contract and 

except as provided in paragraph (b)(3) of 

this section, the attorney of a claimant 

or beneficiary, along with any assistants 

or experts retained by the attorney on 

behalf of the claimant or beneficiary, 

may receive from a claimant or 

beneficiary no more than 2% of the total 

award for all services rendered in 

connection with a successful claim, 

exclusive of costs. 

(3)(i) If an attorney entered into a 

contract with the claimant or 

beneficiary for services before July 10, 

2000, with respect to a particular claim, 

then that attorney may receive up to 

10% of the total award for services 

rendered in connection with a 

successful claim, exclusive of costs. 

(ii) If an attorney resubmits a 

previously denied claim, then that 

attorney may receive up to 10% of the 

total award to the claimant or 

beneficiary for services rendered in 

connection with that subsequently 

successful claim, exclusive of costs. 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
48276 Federal Register / Vol. 75, No. 153 / Tuesday, August 10, 2010 / Rules and Regulations 

Resubmission of a previously denied 

claim includes only those claims that 

were previously denied and refiled 

under the Act. 

(4) Any violation of paragraph (b) of 

this section shall result in a fine of not 

more than $5,000. 

* * * * * 

Dated: August 2, 2010. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2010–19633 Filed 8–9–10; 8:45 am] 

BILLING CODE 4410–12–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2010–0659] 

Drawbridge Operation Regulations; 

Pequonnock River, Bridgeport, CT, 

Maintenance 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of temporary deviation 

from regulations. 

SUMMARY: The Commander, First Coast 

Guard District, has issued a temporary 

deviation from the regulation governing 

the operation of the Metro North (Peck) 

Bridge across the Pequonnock River, 

mile 0.3, at Bridgeport, Connecticut. 

The deviation allows the bridge to 

remain in the closed position to 

facilitate scheduled maintenance for 

three months. 

DATES: This deviation is effective from 

August 7, 2010 through November 7, 

2010. 

ADDRESSES: Documents mentioned in 

this preamble as being available in the 

docket are part of docket USCG–2010– 

0659 and are available online at 

www.regulations.gov, inserting USCG– 

2010–0659 in the ‘‘Keyword’’ and then 

clicking ‘‘Search.’’ They are also 

available for inspection or copying at 

the Docket Management Facility (M–30), 

U.S. Department of Transportation, 

West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

e-mail Ms. Judy Leung-Yee, Project 

Officer, First Coast Guard District, 

telephone (212) 668–7165, e-mail 

judy.k.leung-yee@uscg.mil. If you have 

questions on viewing the docket, call 

Renee V. Wright, Program Manager, 

Docket Operations, telephone 202–366– 

9826. 

SUPPLEMENTARY INFORMATION: The Metro 

North (Peck) Bridge, across the 

Pequonnock River at mile 0.3, at 

Bridgeport, Connecticut, has a vertical 

clearance in the closed position of 26 

feet at mean high water and 32 feet at 

mean low water. The drawbridge 

operation regulations are listed at 33 

CFR 117.219(c). 

The owner of the bridge, Metro North 

Railroad, requested a temporary 

deviation from the regulations to 

facilitate scheduled bridge maintenance, 

mitre rail rehabilitation, at the bridge. 

Under this temporary deviation the 

Metro North (Peck) Bridge may remain 

in the closed position from August 7, 

2010 through November 7, 2010. Vessels 

that can pass under the bridge in the 

closed position may do so at all times. 

The Metro North (Peck) Bridge 

received no requests to open in both 

2008 and 2009. Waterway users were 

advised of the requested bridge closure 

and offered no objection. 

In accordance with 33 CFR 117.35(e), 

the bridge must return to its regular 

operating schedule immediately at the 

end of the designated time period. This 

deviation from the operating regulations 

is authorized under 33 CFR 117.35. 

Dated: July 30, 2010. 

Gary Kassof, 

Bridge Program Manager, First Coast Guard 

District. 

[FR Doc. 2010–19631 Filed 8–9–10; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 215, 217, and 243 

[DFARS Case 2008–D034] 

RIN 0750–AG27 

Defense Federal Acquisition 

Regulation Supplement; Management 

of Unpriced Change Orders 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: The Department of Defense 

(DoD) is adopting as final a proposed 

rule amending the DFARS to make 

requirements for DoD management and 

oversight of unpriced change orders 

consistent with those that apply to other 

undefinitized contract actions. This 

final rule adds new policy to address 

section 812 of the National Defense 

Authorization Act for Fiscal Year 2010. 

DATES: Effective Date: August 10, 2010. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Meredith Murphy, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP/DARS, Room 3B855, 3060 

Defense Pentagon, Washington, DC 

20301–3060, Telephone 703–602–1302; 

facsimile 703–602–0350. Please cite 

DFARS Case 2008–D034. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The proposed rule addressed DFARS 

subpart 217.74, which prescribes 

policies and procedures for the 

management and oversight of 

undefinitized contract actions (UCAs). 

In the current DFARS, unpriced change 

orders that are issued in accordance 

with FAR part 43 and DFARS part 243 

are excluded from the scope of subpart 

217.74. A rule was proposed because of 

the need for full accountability and 

enhanced oversight of unpriced 

contractual actions, including unpriced 

change orders. 

The proposed rule was published in 

the Federal Register at 74 FR 37669 on 

July 29, 2009. Two respondents 

submitted comments in response to the 

proposed rule. One respondent deemed 

this ‘‘a new rule that is very much 

needed,’’ while the other respondent 

requested that the proposed rule be 

withdrawn. To enhance transparency 

and accountability, DoD has determined 

to proceed with this rule. The comments 

submitted by the respondents are 

addressed in the following paragraphs. 

Comment: Make a separate limitation 

on obligations applicable to small 

businesses. 

One respondent addressed the 

percentage limitation on obligations 

prior to definitization, which the 

proposed rule, at DFARS 243.204–70– 

4(a), set at 50 percent. There is an 

exception in the proposed rule allowing 

an increase from 50 percent to 75 

percent when a contractor submits a 

qualifying proposal before 50 percent of 

the not-to-exceed price has been 

obligated by the Government. The 

respondent recommended that the latter 

percentage be increased from 75 percent 

to 95 percent for small, small 

disadvantaged, and HUBZone 

businesses. In support of its position, 

the respondent cited frequent instances 

where it believed that a particular 

agency had requested multiple audits as 

a delaying tactic to avoid definitization. 

When definitization is delayed, the 

contractor can perform up to half of the 

work that has been required unilaterally 

by the Government without being 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1