65214 Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations 

1See Division A, titled the ‘‘Federal Housing 

Finance Regulatory Reform Act of 2008,’’ Title I, 

Section 1101 of HERA. 

effective less than 30 days after 

publication in the Federal Register. 

Immediate implementation of this 

rule is necessary to provide relief to 

those persons who are adversely 

affected by restrictions we no longer 

find warranted. The shipping season for 

M. domestic apple varieties from Japan 

is in progress. Making this rule effective 

immediately will allow interested 

producers and others in the marketing 

chain to benefit during this year’s 

shipping season. Therefore, the 

Administrator of the Animal and Plant 

Health Inspection Service has 

determined that this rule should be 

effective upon publication in the 

Federal Register. 

Executive Order 12866 and Regulatory 

Flexibility Act 

This final rule has been determined to 

be not significant for the purposes of 

Executive Order 12866 and, therefore, 

has not been reviewed by the Office of 

Management and Budget. 

In accordance with the Regulatory 

Flexibility Act, we have analyzed the 

potential economic effects of this action 

on small entities. The analysis is 

summarized below. Copies of the full 

analysis are available on the 

Regulations.gov Web site (see footnote 1 

in this document for a link to 

Regulations.gov) or by contacting the 

person listed under FOR FURTHER

INFORMATION CONTACT. 

Allowing imports of all varieties of M. 

domestica apples from Japan into the 

United States is expected to have 

minimal economic impact on U.S. 

entities, large or small. Although the 

Fuji apple is the most common variety 

grown in Japan, it constituted only 0.1 

percent of U.S. apple imports in 2008. 

Allowing entry of other M. domestica 

varieties is expected to change the 

quantity of apple imports from Japan 

only minimally. The wide price 

differential between apples grown in 

Japan and in the United States suggests 

that apples imported from Japan are not 

a close substitute for the principal U.S.- 

grown apple varieties. 

Under these circumstances, the 

Administrator of the Animal and Plant 

Health Inspection Service has 

determined that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

Executive Order 12988 

This final rule allows all varieties of 

M. domestica apples to be imported into 

the United States from Japan. State and 

local laws and regulations regarding the 

importation of M. domestica apples 

under this rule will be preempted while 

the fruit is in foreign commerce. Fresh 

fruits are generally imported for 

immediate distribution and sale to the 

consuming public, and remain in 

foreign commerce until sold to the 

ultimate consumer. The question of 

when foreign commerce ceases in other 

cases must be addressed on a case-bycase basis. No retroactive effect will be 

given to this rule, and this rule will not 

require administrative proceedings 

before parties may file suit in court 

challenging this rule. 

Paperwork Reduction Act 

This final rule contains no new 

information collection or recordkeeping 

requirements under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). 

List of Subjects in 7 CFR Part 319 

Coffee, Cotton, Fruits, Imports, Logs, 

Nursery stock, Plant diseases and pests, 

Quarantine, Reporting and 

recordkeeping requirements, Rice, 

Vegetables. 

■ Accordingly, we are amending 7 CFR 

part 319 as follows: 

PART 319—FOREIGN QUARANTINE 

NOTICES 

■ 1. The authority citation for part 319 

continues to read as follows: 

Authority: 7 U.S.C. 450, 7701–7772, and 

7781–7786; 21 U.S.C. 136 and 136a; 7 CFR 

2.22, 2.80, and 371.3. 

■ 2. Section 319.56–27 is amended as 

follows: 

■ a. By revising the section heading and 

the introductory text to read as set forth 

below. 

■ b. In paragraphs (b) and (c), by 

removing the words ‘‘Fuji variety’’ each 

time they occur. 

■ c. In paragraphs (b) and (c), by 

removing the word ‘‘agency’’ each time 

it occurs and adding the word 

‘‘organization’’ in its place. 

§ 319.56–27 Apples From Japan and the 

Republic of Korea. 

Any variety of Malus domestica 

apples may be imported into the United 

States from Japan, and Fuji variety 

apples may be imported into the United 

States from the Republic of Korea, only 

in accordance with this section and all 

other applicable provisions of this 

subpart. 

* * * * * 

Done in Washington, DC, this 18th day of 

October 2010. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. 2010–26750 Filed 10–21–10; 8:45 am] 

BILLING CODE 3410–34–P 

FEDERAL HOUSING FINANCE 

AGENCY 

12 CFR Part 1203 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

Office of Federal Housing Enterprise 

Oversight 

12 CFR Part 1705 

RIN 2590–AA29 

Equal Access to Justice Act 

Implementation 

AGENCY: Federal Housing Finance 

Agency; Office of Federal Housing 

Enterprise Oversight, HUD. 

ACTION: Final rule. 

SUMMARY: The Federal Housing Finance 

Agency (FHFA) is issuing a final 

regulation that establishes procedures 

for the submission and consideration of 

applications for awards of fees and other 

expenses by prevailing parties in 

adjudications against FHFA. 

DATES: The final regulation is effective 

November 22, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Janice A. Kullman, Associate General 

Counsel, telephone (202) 414–8970 (not 

a toll-free number); 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) and the Federal Home 

Loan Bank Act (12 U.S.C. 1421 et seq.) 

to establish FHFA as an independent 

agency of the Federal Government.1

HERA transferred the supervisory and 

oversight responsibilities over the 

Federal National Mortgage Association 

(Fannie Mae), the Federal Home Loan 

Mortgage Corporation (Freddie Mac) 

(collectively, Enterprises), and the 

Federal Home Loan Banks (collectively, 

regulated entities), from the Office of 

Federal Housing Enterprise Oversight 


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2See sections 1302 and 1312 of HERA. 

(OFHEO) and the Federal Housing 

Finance Board (FHFB), respectively, to 

FHFA. FHFA was established to oversee 

the prudential operations of the 

regulated entities to ensure that they 

operate in a safe and sound manner, 

including being adequately capitalized; 

and carry out their public policy 

missions, including fostering liquid, 

efficient, competitive and resilient 

national housing finance markets. The 

regulated entities continue to operate 

under regulations promulgated by 

OFHEO and FHFB and such regulations 

are enforceable by the Director of FHFA 

until such regulations are modified, 

terminated, set aside, or superseded by 

regulations issued by FHFA.2

B. Equal Access to Justice Act 

The Equal Access to Justice Act, 5 

U.S.C. 504, requires that an agency that 

conducts adversarial adjudications 

award costs and fees in connection with 

that adjudication to the prevailing party 

unless the adjudicative officer of the 

agency finds that the agency’s position 

was substantially justified or other 

circumstances make such an award 

unjust. 

II. Proposed Rulemaking and Request 

for Comments 

Because FHFA conducts adversarial 

adjudications, FHFA proposed and 

requested comments on a regulation to 

establish procedures for the submission 

and consideration of applications for 

awards of fees and other expenses by 

prevailing parties as required by the 

Equal Access to Justice Act. The 

proposed regulation was published in 

the Federal Register at 75 FR 17622 

(April 7, 2010). FHFA received no 

comments on the proposed regulation. 

III. Final Rulemaking 

FHFA is publishing as final the 

proposed Equal Access to Justice Act 

Implementation regulation. In addition, 

FHFA is removing the OFHEO 

Implementation of the Equal Access to 

Justice Act regulation at 12 CFR part 

1705. 

IV. Section by Section Analysis 

The following is a section-by-section 

analysis of the regulation. 

Subpart A—General Provisions 

Section 1203.1 Purpose and Scope 

Section 1203.1 provides that the 

purpose of this regulation is to 

implement the Equal Access to Justice 

Act, 5 U.S.C. 504, by establishing 

procedures for the filing and 

consideration of applications for awards 

of fees and other expenses to eligible 

individuals and entities who are parties 

to adversary adjudications before FHFA. 

This section also provides that the 

purpose of this part is to award fees and 

other expenses in connection with 

adversary adjudications before FHFA. 

Section 1203.2 Definitions 

This section sets forth definitions for 

the regulation. 

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. 

Adversary adjudication means an 

administrative proceeding conducted by 

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

position of FHFA or any other agency of 

the United States is represented by 

counsel or otherwise, including but not 

limited to an adjudication conducted 

under the Safety and Soundness Act, as 

amended, and any implementing 

regulations. 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. 

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. 

Agency counsel means the attorney or 

attorneys designated by the General 

Counsel of FHFA to represent FHFA in 

an adversary adjudication covered by 

this part. 

Demand of FHFA means the express 

demand of FHFA that led to the 

adversary adjudication, but does not 

include a recitation by FHFA of the 

maximum statutory penalty when 

accompanied by an express demand for 

a lesser amount. 

Director means the Director of the 

Federal Housing Finance Agency. 

Fees and other expenses includes 

reasonable attorney or agent fees, the 

reasonable expenses of expert witnesses, 

and the reasonable cost of any study, 

analysis, engineering report, test, or 

expense which the agency finds 

necessary for the preparation of the 

eligible party’s case. 

FHFA means the Federal Housing 

Finance Agency. 

Final disposition date 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. 

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 adversarial adjudication. 

Position of FHFA means the position 

taken by FHFA in the adversary 

adjudication, including the action or 

failure to act by FHFA upon which the 

adversary adjudication was based. 

Section 1203.3 Eligible Parties 

Section 1203.3 sets out the eligibility 

requirements for parties seeking fees 

and expenses. 

Paragraph (a) of this section requires 

the applicant to be a party to the 

adversary adjudication for which it 

seeks an award and be a small entity as 

defined in 5 U.S.C. 601. It also requires 

an applicant to meet all conditions of 

eligibility set out in this paragraph and 

comply with all the requirements in 

subpart B of this part. 

Paragraph (b) of this section requires 

that a party be one of the following: 

• An individual who has a net worth 

of not more than $2 million; 

• 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; 

• 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; 

• 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 

• Any other partnership, corporation, 

association, unit of local government, or 


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organization that has a net worth of not 

more than $7 million and not more than 

500 employees. 

Paragraph (c) of this section clarifies 

the requirements for eligibility by 

requiring that: 

• The employees of a party must 

include all persons who regularly 

perform services for remuneration for 

the party, under the party’s direction 

and control. Part-time employees must 

be included on a proportional basis. 

• The net worth and number of 

employees of the party and its affiliates 

must be aggregated to determine 

eligibility. 

• The net worth and number of 

employees of a party will be determined 

as of the date the underlying adversary 

adjudication was initiated. 

• A party that participates in an 

adversarial adjudication primarily on 

behalf of one or more entities that 

would be ineligible for an award is not 

itself eligible for an award. 

Section 1203.4 Standards for Awards 

Section 1203.4 sets out the standards 

for the award of fees and expenses. 

Paragraph (a) of this section provides 

that an eligible party that files an 

application for award of fees and other 

expenses in accordance with this part 

will receive an award of fees and other 

expenses related to defending against a 

demand of FHFA 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. This paragraph also 

explains that the burden of proof that 

the demand of FHFA was substantially 

in excess of the decision and is 

unreasonable when compared with the 

decision is on the eligible party. 

Paragraph (b) of this section provides 

that an eligible party that submits an 

application for award in accordance 

with this part will 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 FHFA in the adversary adjudication 

was substantially justified or special 

circumstances make an award unjust. 

This paragraph further explains that 

FHFA has the burden of proof to show 

that its position was substantially 

justified and could do so by showing 

that its position was reasonable in law 

and in fact. 

Section 1203.5 Allowable Fees and 

Expenses 

Section 1203.5 sets forth what fees 

and expenses a party may collect under 

this part. 

Paragraph (a) of this section provides 

that awards of fees and other expenses 

are 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. This 

paragraph also explains that, except as 

provided in § 1203.6, an award for the 

fee of an attorney or agent can not 

exceed $125 per hour and an award to 

compensate an expert witness can not 

exceed the highest rate at which FHFA 

pays expert witnesses. However, under 

this paragraph, an award can 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. 

Paragraph (b) of this section sets out 

the factors the adjudicative officer must 

consider for determining the 

reasonableness of the fee, including the 

following: 

• 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; 

• The prevailing rate for similar 

services in the community in which the 

attorney, agent, or expert witness 

ordinarily performs services; 

• The time actually spent in the 

representation of the eligible party; 

• The time reasonably spent in light 

of the difficulty or complexity of the 

issues in the adversary adjudication; 

and 

• Such other factors as may bear on 

the value of the services provided. 

Paragraph (c) of this section provides 

that 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 will consider the 

prevailing rate for similar services in the 

community in which the services were 

performed. 

Paragraph (d) of this section provides 

that fees and other expenses incurred 

before the date on which an adversarial 

adjudication was initiated will be 

awarded only if the eligible party can 

demonstrate that they were reasonably 

incurred in preparation for the 

adversary adjudication. 

Section 1203.6 Rulemaking on 

Maximum Rate for Fees 

Section 1203.6 provides that FHFA 

can 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 if 

warranted by an increase in the cost of 

living or by special circumstances. 

Special circumstances include the 

limited availability of attorneys or 

agents who are qualified to handle 

certain types of adversary adjudications. 

This section provides that FHFA can 

conduct any rulemaking proceedings for 

this purpose under the informal 

rulemaking procedures of the 

Administrative Procedure Act, 5 U.S.C. 

553. 

Section 1203.7 Awards Against Other 

Agencies 

Section 1203.7 provides that if 

another agency of the United States 

participates in an adversarial 

adjudication before FHFA 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 will be 

made against that agency. 

Subpart B—Information Required From 

Applicants 

Section 1203.10 Contents of the 

Application for Award 

Section 1203.10 provides, under 

paragraph (a) of this section, that an 

application for award of fees and other 

expenses under either § 1203.4(a) or 

§ 1203.4(b) will have to: 

• Identify the applicant and the 

adversary adjudication for which an 

award is sought; 

• State the amount of fees and other 

expenses for which an award is sought; 

• Provide the statements and 

documentation required by paragraph 

(b) or (c) of this section and § 1203.12 

and any additional information required 

by the adjudicative officer; and 

• 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. 

Paragraph (b) of this section requires 

that an application for award under 

§ 1203.4(a), must show that the demand 

of FHFA 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. This 

paragraph also requires the application 


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to show that the applicant is a small 

entity as defined in 5 U.S.C. 601. 

Paragraph (c) of this section sets out 

the requirements for an application for 

award under § 1203.4(b) including that 

the application must: 

• Show that the applicant has 

prevailed in a significant and discrete 

substantive portion of the underlying 

adversary adjudication and identify the 

position of FHFA in the adversary 

adjudication that the applicant alleges 

was not substantially justified; 

• 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); 

• 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 

• Include one of the following: 

—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; 

—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 taxexempt 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 

—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). 

Section 1203.11 Confidentiality of Net 

Worth Exhibit 

Section 1203.11 states that unless 

otherwise ordered by the Director, or 

required by law, the statement of net 

worth will be for the confidential use of 

the adjudicative officer, the Director and 

agency counsel. 

Section 1203.12 Documentation for 

Fees and Expenses 

Section 1203.12 provides the 

requirements for documenting fees and 

expenses. 

Paragraph (a) of this section requires 

that the application for award must be 

accompanied by full and itemized 

documentation of the fees and other 

expenses for which an award is sought. 

This paragraph further provides that the 

adjudicative officer could require the 

applicant to provide vouchers, receipts, 

logs, or other documentation for any 

fees or expenses claimed. 

Paragraph (b) of this section requires 

that a separate itemized statement be 

submitted for each entity or individual 

whose services are covered by the 

application and that each itemized 

statement must include: 

• The hours spent by each entity or 

individual; 

• A description of the specific 

services performed and the rates at 

which each fee has been computed; and 

• 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. 

Subpart C—Procedures for Filing and 

Consideration of the Application for 

Award 

Section 1203.20 Filing and Service of 

the Application for Award and Related 

Papers 

Section 1203.20 sets out the 

procedures for filing and service of an 

application for award. 

Paragraph (a) of this section requires 

that 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. 

Paragraph (b) of this section requires 

that an application for award and other 

papers related to the proceedings on the 

application for award must 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. 

Paragraph (c) of this section requires 

that the computation of time for filing 

and service of the application of award 

and other papers must be computed in 

the same manner as in the underlying 

adversary adjudication. 

Section 1203.21 Response to the 

Application for Award 

Section 1203.21 sets out the 

procedure for responding to the 

application for an award. 

Paragraph (a) of this section requires 

that agency counsel file a response 

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. 

This paragraph also requires that agency 

counsel 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 

must include with the response either 

supporting affidavits or a request for 

further proceedings under § 1203.25. 

Paragraph (b) of this section provides 

that 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 extends the time for filing a 

response for an additional 30 days. 

Upon request by agency counsel and the 

applicant, the adjudicative officer could 

grant for good cause further time 

extensions. 

Paragraph (c) of this section provides 

that agency counsel may request that the 

adjudicative officer extend the time 

period for filing a response. This 

paragraph further provides that if 

agency counsel does not respond 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. 

Section 1203.22 Reply to the Response 

Section 1203.22 provides that within 

15 days after service of a response, the 

applicant may file a reply. This section 

further provides that if the reply is 

based on any alleged facts not already 

in the record of the underlying 

adversary adjudication, the applicant 

must include with the reply either 

supporting affidavits or a request for 

further proceedings under § 1203.25. 

Section 1203.23 Comments by Other 

Parties 

Section 1203.23 provides that 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 a 

response within 15 calendar days after 

it is served. This section also provides 

that 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. 


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Section 1203.24 Settlement 

Section 1203.24 provides that 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 adversarial 

adjudication has been concluded. This 

section further requires that 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 must be filed with 

the proposed settlement. 

Section 1203.25 Further Proceedings 

on the Application for Award 

Section 1203.25 sets forth procedures 

for further proceedings of an application 

for award. 

Paragraph (a) of this section provides 

that on request of either the applicant or 

agency counsel, on the adjudicative 

officer’s own initiative, or as requested 

by the Director of FHFA under 

§ 1203.27, 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. This paragraph 

further provides that such additional 

proceedings will be held only when 

necessary for full and fair resolution of 

the issues arising from the application 

for award and will be conducted as 

promptly as possible. Last, this 

paragraph requires that the issue as to 

whether the position of FHFA in the 

underlying adversary adjudication was 

substantially justified must be 

determined based on the whole 

administrative record that was made in 

the underlying adversary adjudication. 

Paragraph (b) of this section requires 

that a request that the adjudicative 

officer order further proceedings under 

this section must specifically identify 

the information sought on the disputed 

issues and must explain why the 

additional proceedings are necessary to 

resolve the issues. 

Section 1203.26 Decision of the 

Adjudicative Officer 

Section 1203.26 sets forth the 

requirements for the decision of the 

adjudicative officer. 

Paragraph (a) of this section provides 

that the adjudicative officer must make 

the initial decision on the basis of the 

written record, except if further 

proceedings are ordered under 

§ 1203.25. 

Paragraph (b) of this section provides 

that the adjudicative officer must issue 

a written initial decision on the 

application for award within 30 days 

after completion of proceedings on the 

application. This paragraph provides 

that the initial decision becomes the 

final decision of FHFA after 30 days 

from the day it was issued, unless 

review is ordered under § 1203.27. 

Paragraph (c) of this section provides 

that in all initial decisions, the 

adjudicative officer must 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. This paragraph also 

provides that if the applicant has sought 

an award against more than one agency, 

the adjudicative officer must also 

include findings and conclusions with 

respect to the allocation of payment of 

any award made. 

Paragraph (d) of this section provides 

that in initial decisions on applications 

filed pursuant to § 1203.4(a), the 

adjudicative officer must include 

findings and conclusions as to whether 

FHFA 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. 

Paragraph (e) of this section provides 

that in decisions on applications filed 

pursuant to § 1203.4(b), the adjudicative 

officer must include written findings 

and conclusions as to whether the 

applicant is a prevailing party and 

whether the position of FHFA 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. 

Section 1203.27 Review by FHFA 

Section 1203.27 provides that within 

30 days after the adjudicative officer 

issues an initial decision under 

§ 1203.26, either the applicant or agency 

counsel may request the Director to 

review the initial decision of the 

adjudicative officer. This section also 

provides that the Director or his or her 

designee may also decide, on his or her 

own initiative, to review the initial 

decision. Under this section, whether to 

review a decision is at the discretion of 

the Director or his or her designee. If 

review is ordered, the Director or his or 

her designee would issue a final 

decision on the application for award or 

remand the application for award to the 

adjudicative officer for further 

proceedings under § 1203.25. 

Section 1203.28 Judicial Review 

Section 1203.28 provides that 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 could seek 

judicial review as provided in 5 U.S.C. 

504(c)(2). 

Section 1203.29 Payment of Award 

Section 1203.29 provides that to 

receive payment of an award of fees and 

other expenses granted under this part, 

the applicant must 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, 

Federal Housing Finance Agency, 1700 

G Street, NW., Washington, DC 20552. 

Under this section, FHFA must 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 already been sought by 

any party to the proceedings. 

Regulatory Impacts 

Paperwork Reduction Act 

The regulation does not contain any 

information collection requirement that 

requires the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.). 

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 

does not have a significant economic 

impact on a substantial number of small 

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

considered the impact of the regulation 

under the Regulatory Flexibility Act and 

certifies that the regulation is not likely 

to have a significant economic impact 

on a substantial number of small 

business entities. The regulation is 

applicable only to parties who have 

prevailed in adjudication against FHFA. 

These parties will not represent a 

substantial number of small business 

entities. 


emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations 65219 

List of Subjects in 12 CFR Parts 1203 

and 1705 

Administrative practice and 

procedure, Equal access to justice. 

Authority and Issuance 

■ Accordingly, for the reasons stated in 

the preamble, under the authority of 12 

U.S.C. 4526 and 5 U.S.C. 504, FHFA 

amends Chapters XII and XVII of Title 

12 of the Code of Federal Regulations, 

as follows: 

CHAPTER XII—FEDERAL HOUSING 

FINANCE AGENCY 

SUBCHAPTER A—ORGANIZATION AND 

OPERATIONS 

■ 1. Add part 1203 to Subchapter A to 

read as follows: 

PART 1203—EQUAL ACCESS TO 

JUSTICE ACT 

Subpart A—General Provisions 

Sec. 

1203.1 Purpose and scope. 

1203.2 Definitions. 

1203.3 Eligible parties. 

1203.4 Standards for awards. 

1203.5 Allowable fees and expenses. 

1203.6 Rulemaking on maximum rate for 

fees. 

1203.7 Awards against other agencies. 

1203.8–1203.9 [Reserved] 

Subpart B—Information Required From 

Applicants 

1203.10 Contents of the application for 

award. 

1203.11 Confidentiality of net worth 

exhibit. 

1203.12 Documentation for fees and 

expenses. 

1203.13–1203.19 [Reserved] 

Subpart C—Procedures for Filing and 

Consideration of the Application for Award 

1203.20 Filing and service of the 

application for award and related papers. 

1203.21 Response to the application for 

award. 

1203.22 Reply to the response. 

1203.23 Comments by other parties. 

1203.24 Settlement. 

1203.25 Further proceedings on the 

application for award. 

1203.26 Decision of the adjudicative officer. 

1203.27 Review by FHFA. 

1203.28 Judicial review. 

1203.29 Payment of award. 

Authority: 12 U.S.C. 4526, 5 U.S.C. 504. 

Subpart A—General Provisions 

§ 1203.1 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 

awards of fees and other expenses to 

eligible individuals and entities who are 

parties to adversary adjudications before 

FHFA. 

(b) This part applies to the award of 

fees and other expenses in connection 

with adversary adjudications before 

FHFA. 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). 

§ 1203.2 Definitions. 

As used in this part: 

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. 

Adversary adjudication means an 

administrative proceeding conducted by 

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

position of FHFA or any other agency of 

the United States is represented by 

counsel or otherwise, including but not 

limited to an adjudication conducted 

under the Safety and Soundness Act, as 

amended, and any implementing 

regulations. 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. 

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. 

Agency counsel means the attorney or 

attorneys designated by the General 

Counsel of FHFA to represent FHFA in 

an adversary adjudication covered by 

this part. 

Demand of FHFA means the express 

demand of FHFA that led to the 

adversary adjudication, but does not 

include a recitation by FHFA of the 

maximum statutory penalty when 

accompanied by an express demand for 

a lesser amount. 

Director means the Director of the 

Federal Housing Finance Agency. 

Fees and other expenses means 

reasonable attorney or agent fees, the 

reasonable expenses of expert witnesses, 

and the reasonable cost of any study, 

analysis, engineering report, or test, 

which the agency finds necessary for the 

preparation of the eligible party’s case. 

FHFA means the Federal Housing 

Finance Agency. 

Final disposition date 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. 

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. 

Position of FHFA means the position 

taken by FHFA in the adversary 

adjudication, including the action or 

failure to act by FHFA upon which the 

adversary adjudication was based. 

§ 1203.3 Eligible parties. 

(a) To be eligible for an award of fees 

and other expenses under the Equal 

Access to Justice Act, the applicant 

must show that it meets all conditions 

of eligibility set out in this paragraph 

and has complied with all the 

requirements in Subpart B of this part. 

The applicant must also be a party to 

the adversary adjudication for which it 

seeks an award. 

(b) To be eligible for an award of fees 

and other expenses for prevailing 

parties, a party must be one of the 

following: 

(1) An individual who has a net worth 

of not more than $2 million; 

(2) 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; 

(3) 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; 

(4) 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; 

(5) Any other partnership, 

corporation, association, unit of local 

government, or organization that has a 


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net worth of not more than $7 million 

and not more than 500 employees; or 

(6) For the purposes of an application 

filed pursuant to 5 U.S.C. 504(a)(4), a 

small entity as defined in 5 U.S.C. 601. 

(c) For purposes of eligibility under 

this section: 

(1) The employees of a party must 

include all persons who regularly 

perform services for remuneration for 

the party, under the party’s direction 

and control. Part-time employees must 

be included on a proportional basis. 

(2) The net worth and number of 

employees of the party and its affiliates 

must be aggregated to determine 

eligibility. 

(3) The net worth and number of 

employees of a party will be determined 

as of the date the underlying adversary 

adjudication was initiated. 

(4) 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. 

§ 1203.4 Standards for awards. 

(a) An eligible party that files an 

application for award of fees and other 

expenses in accordance with this part 

will receive an award of fees and other 

expenses related to defending against a 

demand of FHFA 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 FHFA 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 will 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 FHFA in the adversary adjudication 

was substantially justified or special 

circumstances make an award unjust. 

FHFA 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. 

§ 1203.5 Allowable fees and expenses. 

(a) Awards of fees and other expenses 

will 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 

§ 1203.6, 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 FHFA 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 will 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 will 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. 

§ 1203.6 Rulemaking on maximum rate for 

fees. 

If warranted by an increase in the cost 

of living or by special circumstances, 

FHFA 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. 

FHFA will conduct any rulemaking 

proceedings for this purpose under the 

informal rulemaking procedures of the 

Administrative Procedure Act, 5 U.S.C. 

553. 

§ 1203.7 Awards against other agencies. 

If another agency of the United States 

participates in an adversary 

adjudication before FHFA 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 will be 

made against that agency. 

§§ 1203.8–1203.9 [Reserved] 

Subpart B—Information Required From 

Applicants 

§ 1203.10 Contents of the application for 

award. 

(a) An application for award of fees 

and other expenses under either 

§ 1203.4(a) and § 1203.4(b) must: 

(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 § 1203.12 

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 

§ 1203.4(a) must show that the demand 

of FHFA 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 must 

also show that the applicant is a small 

entity as defined in 5 U.S.C. 601. 

(c) An application for award under 

§ 1203.4(b) must: 

(1) Show that the applicant has 

prevailed in a significant and discrete 

substantive portion of the underlying 

adversary adjudication and identify the 

position of FHFA 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: 


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Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations 65221 

(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; 

(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). 

§ 1203.11 Confidentiality of net worth 

exhibit. 

Unless otherwise ordered by the 

Director, or required by law, the 

statement of net worth will be for the 

confidential use of the adjudicative 

officer, the Director, and agency 

counsel. 

§ 1203.12 Documentation for fees and 

expenses. 

(a) The application for award must 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 

must be submitted for each entity or 

individual whose services are covered 

by the application. Each itemized 

statement must 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. 

§§ 1203.13–1203.19 [Reserved] 

Subpart C—Procedures for Filing and 

Consideration of the Application for 

Award 

§ 1203.20 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 must 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 must be computed in 

the same manner as in the underlying 

adversary adjudication. 

§ 1203.21 Response to the application for 

award. 

(a) Agency counsel must file a 

response 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 response, agency counsel must 

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 must 

include with the response either 

supporting affidavits or a request for 

further proceedings under § 1203.25. 

(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 will extend the 

time for filing a response 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 a response. If agency 

counsel does not respond 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. 

§ 1203.22 Reply to the response. 

Within 15 days after service of a 

response, 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 must include with the reply 

either supporting affidavits or a request 

for further proceedings under § 1203.25. 

§ 1203.23 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 a 

response 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. 

§ 1203.24 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 must be filed with 

the proposed settlement. 

§ 1203.25 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 under § 1203.27, 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 will 

be held only when necessary for full 

and fair resolution of the issues arising 

from the application for award and will 

be conducted as promptly as possible. 

The issue as to whether the position of 

FHFA in the underlying adversary 

adjudication was substantially justified 

will 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 must specifically identify 

the information sought on the disputed 

issues and must explain why the 


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65222 Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations 

additional proceedings are necessary to 

resolve the issues. 

§ 1203.26 Decision of the adjudicative 

officer. 

(a) The adjudicative officer must make 

the initial decision on the basis of the 

written record, except if further 

proceedings are ordered under 

§ 1203.25. 

(b) The adjudicative officer must issue 

a written initial decision on the 

application for award within 30 days 

after completion of proceedings on the 

application. The initial decision will 

become the final decision of FHFA after 

30 days from the day it was issued, 

unless review is ordered under 

§ 1203.27. 

(c) In all initial decisions, the 

adjudicative officer must 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 must 

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 § 1203.4(a), the 

adjudicative officer must include 

findings and conclusions as to whether 

FHFA 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 § 1203.4(b), the adjudicative 

officer must include written findings 

and conclusions as to whether the 

applicant is a prevailing party and 

whether the position of FHFA 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. 

§ 1203.27 Review by FHFA. 

Within 30 days after the adjudicative 

officer issues an initial decision under 

§ 1203.26, either the applicant or agency 

counsel may request the Director to 

review the initial decision of the 

adjudicative officer. The Director may 

also decide, at his or her discretion, to 

review the initial decision. If review is 

ordered, the Director must issue a final 

decision on the application for award or 

remand the application for award to the 

adjudicative officer for further 

proceedings under § 1203.25. 

§ 1203.28 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). 

§ 1203.29 Payment of award. 

To receive payment of an award of 

fees and other expenses granted under 

this part, the applicant must 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, Federal Housing Finance 

Agency, 1700 G Street, NW., 

Washington, DC 20552. FHFA must 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. 

CHAPTER XVII—OFFICE OF FEDERAL 

HOUSING ENTERPRISE OVERSIGHT, 

DEPARTMENT OF HOUSING AND URBAN 

DEVELOPMENT 

PART 1705—[REMOVED] 

■ 2. Remove part 1705. 

Dated: October 14, 2010. 

Edward J. DeMarco, 

Acting Director, Federal Housing Finance 

Agency. 

[FR Doc. 2010–26650 Filed 10–21–10; 8:45 am] 

BILLING CODE 8070–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2010–0611; Directorate 

Identifier 2009–SW–18–AD; Amendment 39– 

16487; AD 2010–22–08] 

RIN 2120–AA64 

Airworthiness Directives; Eurocopter 

France Model AS 350 B, BA, B1, B2, 

B3, and D, and Model AS355 E, F, F1, 

F2, and N Helicopters 

AGENCY: Federal Aviation 

Administration, DOT. 

ACTION: Final rule. 

SUMMARY: We are adopting a new 

airworthiness directive (AD) for the 

Eurocopter France Model AS 350 B, BA, 

B1, B2, B3, and D, and Model AS355 E, 

F, F1, F2, and N helicopters, with 

certain main rotor servo-controls and 

tail rotor servo-controls. This AD 

requires replacing all servo-controls that 

are identified in the Applicability 

section of this AD. This AD is prompted 

by an internal review conducted by the 

manufacturer which revealed that some 

main and tail rotor servo-controls do not 

conform to the approved design. The 

actions specified by this AD are 

intended to prevent the distributor slide 

valve jamming in its sleeve, leading to 

reduced controllability of the rotors and 

subsequent loss of control of the 

helicopter. 

DATES: Effective November 26, 2010. 

ADDRESSES: You may get the service 

information identified in this AD from 

American Eurocopter Corporation, 2701 

Forum Drive, Grand Prairie, Texas 

75053–4005, telephone (972) 641–3460, 

fax (972) 641–3527. 

Examining the Docket: You may 

examine the docket that contains this 

AD, any comments, and other 

information on the Internet at http:// 

www.regulations.gov or at the Docket 

Operations office, West Building 

Ground Floor, Room W12–140, 1200 

New Jersey Avenue, SE., Washington, 

DC. 

FOR FURTHER INFORMATION CONTACT: J. R. 

Holton, Aviation Safety Engineer, FAA, 

Rotorcraft Directorate, Regulations and 

Guidance Group, ASW–111, 2601 

Meacham Blvd., Fort Worth, Texas 

76137, telephone (817) 222–4964, fax 

(817) 222–5961. 

SUPPLEMENTARY INFORMATION: 

Discussion 

We issued a Notice of Proposed 

Rulemaking (NPRM) to amend 14 CFR 

part 39 to include an AD that would 

apply to the Eurocopter France Model 

AS 350 B, BA, B1, B2, B3, and D, and 

Model AS355 E, F, F1, F2, and N 

helicopters on June 9, 2010. That NPRM 

was published in the Federal Register 

on June 16, 2010 (75 FR 34062). That 

NPRM proposed to require replacing all 

servo-controls that are identified in the 

Applicability section of the proposed 

AD. The NPRM was prompted by an 

internal review conducted by the 

manufacturer which revealed that some 

main and tail rotor servo-controls do not 

conform to the approved design. The 

actions specified by the NPRM are 

intended to prevent the distributor slide 

valve jamming in its sleeve, leading to 

reduced controllability of the rotors and 

subsequent loss of control of the 

helicopter. 

The European Aviation Safety Agency 

(EASA), which is the Technical Agent 


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