Rules Implementing the Equal Access to Justice Act
| Citation | 86 FR 26658 |
| Record Number | 2021-10354 |
| Published date | 17 May 2021 |
| Section | Rules and Regulations |
| Court | Occupational Safety And Health Review Commission |
26658
Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations
PART 1112—REQUIREMENTS
PERTAINING TO THIRD PARTY
CONFORMITY ASSESSMENT BODIES
■1. The authority citation for part 1112
continues to read as follows:
Authority: 15 U.S.C. 2063; Pub. L. 110–
314, section 3, 122 Stat. 3016, 3017 (2008).
■2. Amend § 1112.15 by revising
paragraph (b)(43) to read as follows:
§ 1112.15 When can a third party
conformity assessment body apply for
CPSC acceptance for a particular CPSC rule
or test method?
* * * * *
(b) * * *
(43) 16 CFR part 1232, Safety
Standard for Children’s Folding Chairs
and Children’s Folding Stools.
* * * * *
PART 1130—REQUIREMENTS FOR
CONSUMER REGISTRATION OF
DURABLE INFANT OR TODDLER
PRODUCTS
■3. The authority citation for part 1130
continues to read as follows:
Authority: 15 U.S.C. 2056a, 2065(b).
■4. Amend § 1130.2 by revising
paragraph (a)(13) to read as follows:
§ 1130.2 Definitions.
* * * * *
(a) * * *
(13) Children’s folding chairs and
children’s folding stools;
* * * * *
■5. Revise part 1232 to read as follows:
PART 1232—SAFETY STANDARD FOR
CHILDREN’S FOLDING CHAIRS AND
CHILDREN’S FOLDING STOOLS
Sec.
1232.1 Scope.
1232.2 Requirements for children’s folding
chairs and children’s folding stools.
Authority: Sec. 104, Pub. L. 110–314, 122
Stat. 3016 (15 U.S.C. 2056a); Sec 3, Pub. L.
112–28, 125 Stat. 273.
§ 1232.1 Scope.
This part establishes a consumer
product safety standard for children’s
folding chairs and children’s folding
stools.
§ 1232.2 Requirements for children’s
folding chairs and children’s folding stools.
Each children’s folding chair and
children’s folding stool shall comply
with all applicable provisions of ASTM
F2613–21, Standard Consumer Safety
Specification for Children’s Chairs and
Stools, approved on February 1, 2021.
The Director of the Federal Register
approves this incorporation by reference
in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. You may obtain a copy
of this ASTM standard from ASTM
International, 100 Barr Harbor Drive,
P.O. Box C700, West Conshohocken, PA
19428–2959 USA; phone: 610–832–
9585; www.astm.org. A read-only copy
of the standard is available for viewing
on the ASTM website at https://
www.astm.org/READINGLIBRARY/. You
may inspect a copy at the Division of
the Secretariat, U.S. Consumer Product
Safety Commission, Room 820, 4330
East West Highway, Bethesda, MD
20814, telephone 301–504–7479, email:
cpsc-os@cpsc.gov, or at the National
Archives and Records Administration
(NARA). For information on the
availability of this material at NARA,
email fedreg.legal@nara.gov, or go to:
www.archives.gov/federal-register/cfr/
ibr-locations.html.
Alberta E. Mills,
Secretary, U.S. Consumer Product Safety
Commission.
[FR Doc. 2021–10293 Filed 5–14–21; 8:45 am]
BILLING CODE 6355–01–P
OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION
29 CFR Part 2204
Rules Implementing the Equal Access
to Justice Act
AGENCY
: Occupational Safety and Health
Review Commission.
ACTION
: Final rule.
SUMMARY
: The Occupational Safety and
Health Review Commission (‘‘OSHRC’’)
is amending its procedural rules
implementing the Equal Access to
Justice Act (‘‘EAJA’’). The amendments
closely conform with new model rules
from the Administrative Conference of
the United States.
DATES
: Effective May 17, 2021.
FOR FURTHER INFORMATION CONTACT
:
Carter Tellinghuisen, Attorney-Advisor,
Office of the General Counsel, by
telephone at (202) 606–5410 ext. 211, by
email at ctellinghuisen@oshrc.gov, or by
mail at 1120 20th Street NW, Ninth
Floor, Washington, DC 20036–3457.
SUPPLEMENTARY INFORMATION
: OSHRC
published a notice of proposed
rulemaking on March 8, 2021, 86 FR
13251, which announced revisions to
the Commission’s rules of procedure
implementing EAJA, 29 CFR part 2204,
and invited interested persons to submit
written comments. OSHRC received no
public comments. Accordingly, the
Commission now adopts the proposed
rule as the agency’s final rule, with one
technical amendment to correct a
typographical error in § 2204.301(c).
I. Revisions to Part 2204
EAJA directs Federal agencies to
consult with the Administrative
Conference of the United States
(‘‘ACUS’’) to develop procedural rules
to implement the provisions of the
statute. 5 U.S.C. 504(c)(1). On August 8,
2019, ACUS published Revised Model
Rules for Implementation of the Equal
Access to Justice Act to reflect
subsequent amendments to the law and
practice, and to promote greater
accuracy and clarity. 84 FR 38934
(August 8, 2019). The Commission is
amending its procedural rules in line
with the amendments made by ACUS to
the model rules.
ACUS summarized and explained its
amendments in the preamble to the
amended model rules and in
Administrative Conference
Recommendation 2019–4. 84 FR 38934,
38934 (August 8, 2019); 84 FR 38927,
38933 (August 8, 2019). To the extent
applicable, the Commission relies upon
the rationale ACUS provided in those
documents as the basis for the
amendments to the Commission’s rules.
In addition, the Commission has
determined that an adjustment for
increases in the cost of living is
appropriate in considering an
applicant’s request for attorney or agent
fees. Accordingly, pursuant to 5 U.S.C.
504(b)(1)(A), the Commission revises
§§ 2204.303 and 2204.406(c)(2) to allow
an applicant to request, with supporting
documentation, an increase in hourly
fees to account for inflation as measured
by the consumer price index in the
relevant locality.
II. Statutory and Executive Order
Reviews
Executive Orders 12866 and 13132,
and the Unfunded Mandates Reform
Act of 1995: The Review Commission is
an independent regulatory agency and,
as such, is not subject to the
requirements of E.O. 12866, E.O. 13132,
or the Unfunded Mandates Reform Act,
2 U.S.C. 1501 et seq.
Regulatory Flexibility Act: Pursuant to
5 U.S.C. 605(a), a regulatory flexibility
analysis is not required because these
rules concern ‘‘interpretative rules,
general statements of policy, or rules of
agency organization, procedure, or
practice’’ under 5 U.S.C. 553(b).
Paperwork Reduction Act of 1995:
The Review Commission has
determined that the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.,
does not apply because these rules do
not contain any information collection
requirements that require the approval
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of the Office of Management and Budget
(OMB).
Congressional Review Act: These
revisions do not constitute a ‘‘rule,’’ as
defined by the Congressional Review
Act, 5 U.S.C. 804(3)(C), because they
involve changes to agency organization,
procedure, or practice that do not
substantially affect the rights or
obligations of non-agency parties.
List of Subjects in 29 CFR Part 2204
Administrative practice and
procedure, Equal access to justice.
■For the reasons set forth in the
preamble, the Review Commission
revises 29 CFR part 2204 to read as
follows:
PART 2204—IMPLEMENTATION OF
THE EQUAL ACCESS TO JUSTICE
ACT IN PROCEEDINGS BEFORE THE
OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION
Subpart A—General Provisions
Sec.
2204.101 Scope of this part.
Subpart B—Definitions
2204.201 Definitions.
Subpart C—EAJA Application
2204.301 Application requirements.
2204.302 Net worth exhibit.
2204.303 Documentation of fees and
expenses.
Subpart D—Procedures for Considering
Applications
2204.401 Filing and service of documents.
2204.402 Answer to application.
2204.403 Reply.
2204.404 Settlement.
2204.405 Further proceedings.
2204.406 Decision.
2204.407 Commission review.
2204.408 Judicial review.
2204.409 Stay of decision concerning
award.
2204.410 Waiver.
2204.411 Payment of award.
Authority: 5 U.S.C. 504.
Subpart A—General Provisions
§ 2204.101 Scope of this part.
The Equal Access to Justice Act, 5
U.S.C. 504 (called ‘‘EAJA’’ in this part),
provides for the award of attorney or
agent fees and other expenses to eligible
individuals and entities who are parties
to certain administrative proceedings
(called ‘‘adversary adjudications’’)
before the Occupational Safety and
Health Review Commission. An eligible
party may receive an award when it
prevails over the Secretary of Labor,
unless the Secretary’s position in the
proceeding was substantially justified or
special circumstances make an award
unjust. Alternatively, an eligible party,
even if not a prevailing party, may
receive an award under 5 U.S.C.
504(a)(4) when it successfully defends
against an excessive demand made by
the Secretary.
Subpart B—Definitions
§ 2204.201 Definitions.
For the purposes of this part:
Adversary adjudication means an
adjudication under 5 U.S.C. 554 and 29
U.S.C. 659(c) in which the position of
the Secretary is represented by counsel
or otherwise, subject to certain
exclusions set forth in 5 U.S.C.
504(b)(1)(C).
Agent means any person other than an
attorney who represents a party in a
proceeding before the Commission
pursuant to § 2200.22 of this chapter.
Commission means the Occupational
Safety and Health Review Commission.
Demand means the express demand
of the Secretary which led to the
adversary adjudication, but does not
include a recitation by the Secretary of
the maximum statutory penalty:
(1) In the administrative complaint; or
(2) Elsewhere when accompanied by
an express demand for a lesser amount.
Excessive demand means a demand
by the Secretary, in an adversary
adjudication arising from the Secretary’s
action to enforce a party’s compliance
with a statutory requirement that is
substantially in excess of the decision of
the judge or Commission and is
unreasonable when compared with such
decision, under the facts and
circumstances of the case.
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,
become final and unappealable, both
within the agency and to the courts.
Judge means the Administrative Law
Judge appointed under 29 U.S.C. 661(j)
who presided over the adversary
adjudication or presides over an EAJA
proceeding.
Party means a party, as defined in 5
U.S.C. 551(3), who is:
(1) An individual whose net worth
did not exceed $2,000,000 at the time
the adversary adjudication was
initiated; or
(2) Any owner of an unincorporated
business, or any partnership,
corporation, association, unit of local
government, or organization, the net
worth of which did not exceed
$7,000,000 at the time the adversary
adjudication was initiated, and which
had not more than 500 employees at the
time the adversary adjudication was
initiated; except that an organization
described in section 501(c)(3) of the
Internal Revenue Code of 1986 exempt
from taxation under section 501(a) of
such Code, or a cooperative association
as defined in section 15(a) of the
Agricultural Marketing Act, may be a
party regardless of the net worth of such
organization or cooperative association.
For purposes of 5 U.S.C. 504(a)(4),
‘‘party’’ also includes a small entity as
defined in 5 U.S.C. 601.
Position of the Secretary means, in
addition to the position taken by the
Secretary in the adversary adjudication,
the action or failure to act by the
Secretary upon which the adversary
adjudication is based, except that fees
and other expenses may not be awarded
to a party for any portion of the
adversary adjudication in which the
party has unreasonably protracted the
proceedings.
Secretary means the Secretary of
Labor.
Subpart C—EAJA Application
§ 2204.301 Application requirements.
(a) A party seeking an award under
EAJA shall file an application with the
judge that conducted the adversarial
adjudication within 30 days after the
final disposition of the adversary
adjudication.
(b) The application shall identify the
applicant and the proceeding for which
an award is sought. The application
shall show that the applicant has
prevailed and identify the position of
the Secretary that the applicant alleges
was not substantially justified; or, if the
applicant has not prevailed, shall show
that the Secretary’s demand was
substantially in excess of the decision of
the judge or Commission and was
unreasonable when compared with that
decision under the facts and
circumstances of that case. The
application shall also identify the
Secretary’s position(s) in the proceeding
that the applicant alleges was (were) not
substantially justified or the Secretary’s
demand that is alleged to be excessive
and unreasonable. Unless the applicant
is an individual, the application shall
also state the number of employees of
the applicant and briefly describe the
type and purpose of its organization or
business.
(c) The application shall also show
that the applicant meets the definition
of ‘‘party’’ in § 2204.201, including
adequate documentation of its net
worth, as set forth in § 2204.302.
(d) The application shall state the
amount of fees and expenses for which
an award is sought, subject to the
requirements and limitations as set forth
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in 5 U.S.C. 504(b)(1)(A), with adequate
documentation as set forth in
§ 2204.303.
(e) The application shall be signed by
the applicant or an authorized officer,
attorney, or agent of the applicant. It
shall also contain or be accompanied by
a written verification under penalty of
perjury that the information provided in
the application is true and correct.
§ 2204.302 Net worth exhibit.
(a) Each applicant except a qualified
tax-exempt organization, cooperative
association, or, in the case of an
application for an award related to an
allegedly excessive demand by the
Secretary, a small entity as that term is
defined by 5 U.S.C. 601(6), shall provide
with its application a detailed exhibit
showing the net worth of the applicant
as required by § 2204.301(c) when the
proceeding was initiated. The exhibit
may be in any form convenient to the
applicant that provides full disclosure
of the applicant’s assets and liabilities
and is sufficient to determine whether
the applicant qualifies under excessive
demand as defined in § 2204.201. The
judge or Commission may require an
applicant to file additional information
to determine its eligibility for an award.
(b) Ordinarily, the net worth exhibit
will be included in the public record of
the proceeding. However, an applicant
that objects to public disclosure of
information in any portion of the exhibit
and believes there are legal grounds for
withholding it from disclosure may
request that the documents be filed
under seal or otherwise be treated as
confidential, pursuant to §§ 2200.8 and
2200.52 of this chapter.
§ 2204.303 Documentation of fees and
expenses.
The application shall be accompanied
by adequate documentation of the fees
and other expenses incurred after the
initiation of the adversary adjudication,
including, but not limited to, the
reasonable cost of any study, analysis,
engineering report, test, or project. An
application seeking an increase in fees
to account for inflation pursuant to
§ 2200.406 of this chapter shall also
include adequate documentation of the
change in the consumer price index for
the attorney or agent’s locality. With
respect to a claim for fees and expenses
involving an excessive demand by the
Secretary, the application shall be
accompanied by adequate
documentation of such fees and
expenses incurred after initiation of the
adversary adjudication for which an
award is sought attributable to the
portion of the demand alleged to be
excessive and unreasonable. A separate
itemized statement shall be submitted
for each professional firm or individual
whose services are covered by the
application, showing the hours spent in
connection with the proceeding by each
individual, a description of the specific
services performed, the rate at which
each fee has been computed, 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 for the services provided. The
judge or Commission may require the
applicant to provide vouchers, receipts,
or other substantiation for any fees or
expenses claimed.
Subpart D—Procedures for
Considering Applications
§ 2204.401 Filing and service of
documents.
Any application for an award, or any
accompanying documentation related to
an application shall be filed and served
on all parties to the proceeding in
accordance with §§ 2200.7 and 2200.8 of
this chapter, except as provided in
§ 2204.302(b) for confidential financial
information.
§ 2204.402 Answer to application.
(a) Within 30 days after service of an
application, the Secretary shall file an
answer to the application. Unless the
Secretary requests an extension of time
for filing or files a statement of intent to
negotiate under paragraph (b) of this
section, failure to file an answer within
the 30-day period may be treated as a
consent to the award requested.
(b) If the Secretary and the applicant
believe that the issues in the fee
application 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, and
further extensions may be granted by
the judge upon request.
(c) The answer shall explain in detail
any objections to the award requested
and identify the facts relied on in
support of the Secretary’s position. If
the answer is based on any alleged facts
not already in the record of the
proceeding, the Secretary shall include
with the answer either supporting
affidavits or a request for further
proceedings under § 2204.405.
§ 2204.403 Reply.
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
proceeding, the applicant shall include
with the reply either supporting
affidavits or a request for further
proceedings under § 2204.405.
§ 2204.404 Settlement.
The applicant and the Secretary may
agree on a proposed settlement of the
award before final action on the
application, either in connection with a
settlement of the underlying adversary
adjudication, or after the adversary
adjudication has been concluded, in
accordance with the Commission’s
standard settlement procedures as set
forth in § 2200.120 of this chapter. If a
prevailing party and the Secretary agree
on a proposed settlement of an award
before an application has been filed, the
application shall be filed with the
proposed settlement. If a proposed
settlement of an underlying proceeding
provides that each side shall bear its
own expenses and the settlement is
accepted, no application may be filed.
§ 2204.405 Further proceedings.
(a) Ordinarily, the determination of an
award will be made on the basis of the
written record. However, on request of
either the applicant or the Secretary, or
on his or her own initiative, the judge
presiding over an EAJA proceeding may,
if necessary for a full and fair decision
on the application, order the filing of
additional written submissions; hold
oral argument; or allow for discovery or
hold an evidentiary hearing, but only as
to issues other than whether the
agency’s position was substantially
justified (such as those involving the
applicant’s eligibility or substantiation
of fees and expenses). Any written
submissions shall be made, oral
argument held, discovery conducted,
and evidentiary hearing held as
promptly as possible so as not to delay
a decision on the application for fees.
Whether or not the position of the
Secretary was substantially justified
shall be determined on the basis of the
administrative record, as a whole,
which is made in the adversary
adjudication for which fees and other
expenses are sought.
(b) A request for further proceedings
under this section shall specifically
identify the information sought or the
disputed issues and shall explain why
the additional proceedings are necessary
to resolve the issues.
§ 2204.406 Decision.
The preparation and issuance of
decision on the fee application shall be
in accordance with § 2200.90 of this
chapter.
(a) For an application involving a
prevailing party. The decision shall
include written findings and
conclusions on the applicant’s
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eligibility and status as a prevailing
party and an explanation of the reasons
for any difference between the amount
requested and the amount awarded. The
decision shall also include, if
applicable, findings on whether the
Secretary’s position was substantially
justified, whether the applicant unduly
protracted the proceedings, or whether
special circumstances make an award
unjust.
(b) For an application involving an
allegedly excessive agency demand. The
decision shall include written findings
and conclusions on the applicant’s
eligibility and an explanation of the
reasons why the agency’s demand was
or was not determined to be
substantially in excess of the underlying
decision in the matter and whether the
Secretary’s demand was or was not
unreasonable. That determination shall
be based upon all the facts and
circumstances of the case.
(c) Awards. The judge presiding over
an EAJA proceeding or the Commission
on review may reduce the amount to be
awarded, or deny any award, to the
extent that the party during the course
of the proceedings engaged in conduct
which unduly and unreasonably
protracted the final resolution of the
matter in controversy.
(1) Awards 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
applicant.
(2) An award for the fee of an attorney
or agent under this paragraph (c) shall
not exceed the hourly rate specified in
5 U.S.C. 504(b)(1)(A), except to account
for inflation since the last update of the
statute’s maximum award upon the
request of the applicant as documented
in the application pursuant to
§ 2204.303. An award to compensate an
expert witness shall not exceed the
highest rate at which the Secretary pays
expert witnesses. However, an award
may include the reasonable expenses of
the attorney, agent or witness as a
separate item, if the attorney, agent or
witness ordinarily charges clients
separately for such expenses.
(3) In determining the reasonableness
of the fee sought for an attorney, agent,
or expert witness, the following shall be
considered:
(i) If the attorney, agent, or witness is
in private practice, his or her customary
fee for similar services, or, if an
employee of the applicant, the fully
allocated cost of the services;
(ii) The prevailing rate for similar
services in the community in which the
attorney, agent, or witness ordinarily
perform services;
(iii) The time actually spent in the
representation of the applicant;
(iv) The time reasonably spent in light
of the difficulty or complexity of the
issues in the proceeding; and
(v) Such other factors as may bear on
the value of the services provided.
(4) The reasonable cost of any study,
analysis, engineering report, test,
project, or similar matter prepared on
behalf of the party may be awarded, to
the extent that the charge for the service
does not exceed the prevailing rate for
similar services, and the study or other
matter was necessary for preparation of
the applicant’s case.
§ 2204.407 Commission review.
Either the applicant or the Secretary
may seek review of the judge’s decision
on the fee application, and the
Commission may grant such a petition
for review or direct review of the
decision on the Commission’s own
initiative. Review by the Commission
shall be in accordance with §§ 2200.91
and 2200.92 of this chapter.
§ 2204.408 Judicial review.
Judicial review of final decisions on
awards may be sought as provided in 5
U.S.C. 504(c)(2).
§ 2204.409 Stay of decision concerning
award.
Any proceedings on an application for
fees under this part shall be
automatically stayed until the adversary
adjudication has become a final
disposition.
§ 2204.410 Waiver.
After reasonable notice to the parties,
the judge or the Commission may waive,
for good cause shown, any provision
contained in this part as long as the
waiver is consistent with the terms and
purpose of the EAJA.
§ 2204.411 Payment of award.
An applicant seeking payment of an
award shall submit to the officer
designated by the Secretary a copy of
the Commission’s final decision
granting the award, accompanied by a
certification that the applicant will not
seek review of the decision in the
United States courts.
Cynthia L. Attwood,
Chairman.
Amanda Wood Laihow,
Commissioner.
[FR Doc. 2021–10354 Filed 5–14–21; 8:45 am]
BILLING CODE 7600–01–P
DEPARTMENT OF THE TREASURY
Office of Foreign Assets Control
31 CFR Parts 536 and 598
Narcotics Trafficking Sanctions
Regulations and Foreign Narcotics
Kingpin Sanctions Regulations
AGENCY
: Office of Foreign Assets
Control, Treasury.
ACTION
: Final rule.
SUMMARY
: The Department of the
Treasury’s Office of Foreign Assets
Control (OFAC) is amending the
Narcotics Trafficking Sanctions
Regulations and the Foreign Narcotics
Kingpin Sanctions Regulations to add or
amend general licenses with respect to
payments for legal services, certain
transactions for personal maintenance,
certain transactions for maintenance of
blocked tangible property, and
emergency medical services. In
addition, OFAC is amending certain
prohibitions, definitions, and
interpretive sections contained in these
sets of regulations. OFAC is also
updating certain regulatory provisions
and making other technical and
conforming edits.
DATES
: This rule is effective May 17,
2021.
FOR FURTHER INFORMATION CONTACT
:
OFAC: Assistant Director for Licensing,
202–622–2480; Assistant Director for
Regulatory Affairs, 202–622–4855; or
Assistant Director for Sanctions
Compliance & Evaluation, 202–622–
2490.
SUPPLEMENTARY INFORMATION
:
Electronic Availability
This document and additional
information concerning OFAC are
available on OFAC’s website (www.
treasury.gov/ofac).
Background
OFAC administers two sanctions
programs with respect to narcotics
trafficking. The Narcotics Trafficking
Sanctions Regulations, 31 CFR part 536
(NTSR), implement Executive Order
(E.O.) 12978 of October 21, 1995,
‘‘Blocking Assets and Prohibiting
Transactions With Significant Narcotics
Traffickers’’ (60 FR 54579, October 24,
1995), as amended by E.O. 13286 of
February 28, 2003, ‘‘Amendment of
Executive Orders, and Other Actions, in
Connection With the Transfer of Certain
Functions to the Secretary of Homeland
Security’’ (68 FR 10619, March 3, 2003),
in which the President declared a
national emergency, and imposed
sanctions, with respect to ‘‘the actions
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