[Federal Register Volume 67, Number 156 (Tuesday, August 13, 2002)]
[Proposed Rules]
[Pages 52696-52702]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 02-20307]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of the Secretary

45 CFR Part 13


Implementation of the Equal Access to Justice Act in Agency 
Proceedings

AGENCY: Office of the Secretary, HHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This proposed rule would extend the coverage of the 
Department's regulation implementing the Equal Access to Justice Act to 
include adversary administrative adjudications commenced after 
September 30, 1984. It would also amend the eligibility criteria and 
certain other aspects of that regulation to conform with amendments to 
the Act. Finally, it would reflect the separation of the Social 
Security Administration from HHS, and that component's establishment as 
an independent agency in 1995.

DATE: HHS will accept comments on this proposed rule through October 
12, 2002. The Office of Management and Budget will accept comments on 
the amendments to Secs. 13.10 through 13.12 through the same date.

ADDRESSES: Comments must be in writing. Please send them to: Katherine 
M. Drews, Acting Associate General

[[Page 52697]]

Counsel, Business and Administrative Law Division, Room 5362, 330 
Independence Ave., SW., Cohen Building, Room 5362, Washington, DC 
20201. Please send comments on the amendments to subpart B to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Washington, DC 20503, Attention: Desk Officer for HHS.

FOR FURTHER INFORMATION CONTACT: Katherine M. Drews, Acting Associate 
General Counsel. Telephone: (202) 619-0150.

SUPPLEMENTARY INFORMATION:

Background

    The Equal Access to Justice Act (EAJA), enacted in 1980, requires 
the Government to pay attorney fees to parties prevailing against it in 
litigation where the Government's position is not substantially 
justified. The Act applies to certain types of adversary administrative 
proceedings and to certain court litigation where attorney fees are not 
otherwise available.
    The EAJA requires each agency to issue rules implementing the Act 
as it applies to administrative proceedings. The current rule of the 
Department of Health and Human Services (HHS) was published on October 
4, 1983, and is codified at 45 CFR part 13. (All citations below to 
section 13 are to sections of 45 CFR part 13.)
    The original Act had a sunset provision, causing it to expiring on 
September 30, 1984 (although it would continue to cover proceedings 
pending on that date). The HHS regulation presently in effect contains 
a similar sunset provision. A subsequent statutory change eliminated 
the sunset provision, revised the eligibility criteria for parties, and 
amended the Act in certain other respects. Public Law No. 99-80, 99 
Stat. 183 (1985).
    HHS published a Notice of Proposed Rulemaking to revise its EAJA 
regulation on June 19, 1987 (52 FR 23311). Pursuant to the notice, we 
received only one set of comments, from the Office of the Chairman of 
the Administrative Conference of the United States (ACUS), an agency 
that no longer exists. Since then, the Social Security Administration, 
certain proceedings of which were addressed in the proposed rule, 
became an independent agency. See Pub. L. No. 103-296, Sec. 101 
(codified at 42 U.S.C. 901). Also since than, the EAJA has been amended 
by section 231 of the Contract with America Advancement Act of 1996, 
Pub. L. No. 104-121, 110 Stat. 847 (1996). Because of those changes 
because substantial time has passed since the initial Notice of 
Proposed Rulemaking, we are publishing a new Notice of Proposed 
Rulemaking; this notice replaces the earlier notice. We considered the 
ACUS comments carefully, and this notice reflects some of those 
comments. This notice also reflects the changes effected by Pub. L. 
104-121. Since the statutory change, we have been processing fee 
applications under the current regulation except to the extent that the 
amended statute requires changes.
    This proposed rule would amend the existing rule in the following 
ways:
    1. The Act provided for fee shifting only where the agency's 
position was not substantially justified. Pub. L.; 1-4-121 added a 
provision of fee shifting where the agency's demand was substantially 
in excess of the ultimate decision and was unreasonable when compared 
with decision. The proposed regulation would amend section 13.1, and 
would revise sections 13.5 and 13.10 (a)(2), to incorporate this new 
basis for fee awards. Pub. L. 104-121 also added a new category of 
party that would be eligible for a fee award, though only for awards 
made based on this excessive and unreasonable demand criterion. The 
proposed regulation would amend sections 13.4; 13.10(a)(3), (5); and 
13.11(a) to the same effect.
    2. The Act included a sunset clause, section 203(c), providing that 
the Act would not apply to administrative adjudications initiated after 
September 30, 1984. HHS's regulation includes a similar provisions, 45 
CFR 13.2. Section 6(b)(1) of Pub. L. 99-80 repealed the sunset 
provision in the Act. The proposed regulation would similarly amend 
Section 13.2.
    3. Section 13.3 generally provides that we have listed the covered 
proceedings in the Appendix to the rule. We propose revision this 
section to provide for situations involving proceedings not listed in 
the Appendix. The new provision would automatically cover proceedings 
where the procedural rights are incorporated by reference from certain 
statutes that we have already determined invoke the Act. It would also 
allow a party in any other administrative proceeding to file an EAJA 
application and claim coverage, and have the issue resolved in the 
resulting proceeding on the fee application.
    4. Section 1(c)(1) of Pub. L. 99-80 increased the net worth 
limitations on parties eligible to recover fees under EAJA. It also 
added local government units to the categories of eligible entities. 
Section 7 of Pub. L. 99-80 makes these expanded eligibility criteria 
applicable to proceedings pending on or after August 5, 1985 (the 
effective date of that statute), and to proceedings commenced after 
September 30, 1984 (the sunset date of the original EAJA), even if 
finally disposed of before August 5, 1985. The proposed regulation 
would amend Sections 13.3(b) and 13.10(a)(5) to make the same changes 
with respect to the same categories of cases. The passage of time has 
made it unnecessary to provide explicitly for older cases. However, for 
proceedings commenced before October 1, 1984, and finally decided 
before August 5, 1985, the older eligibility criteria would govern, as 
follows: Individuals with a net worth of not more than $1 million; sole 
owners of unincorporated businesses if the owner has a net worth of not 
more than $5 million, including both personal and business interests, 
and if the business has no more than 500 employees; and all other 
partnerships, corporations, associations, or public or private 
organizations with a net worth of not more than $5 million and with not 
more than 500 employees.
    5. Section 1(c)(3) of Pub. L. 99-80 defines the ``position of the 
agency'' to include the action or omission that was the basis for the 
proceeding, and section 1(a)(1) restricts the analysis of whether that 
position was substantially justified to the administrative record. The 
proposed regulation would revise sections 13.5(a) and 13.10(a)(2) 
likewise, and it would also amend section 13.25(a) to the same end.
    6. We no longer take the position that the applicant must have 
actually paid (or must have actually become obligated to pay) the 
attorney fees and expenses in order to recover those fees and expenses 
under EAJA. Accordingly, the proposed regulation would delete the 
sentence in section 13.6(a) that stated this position.
    7. Pub. L. 104-121 increased the allowable hourly rate for fees 
from $75 to $125. The proposed regulation would amend section 13.6(b) 
to the same effect.
    8. The proposed regulation would amend section 13.12(d) to make 
clear that the adjudicative officer may require further substantiation 
of fees as well as expenses.
    9. The EAJA and the HHS regulation require the prevailing party to 
file the fee application within 30 days of the final disposition of the 
administrative proceeding. 5 U.S.C. 504(a)(2); 45 CFR 13.22(a). Section 
7(b) of Pub. L. 99-80 provides that, in cases commenced after September 
30, 1984 (the sunset date of the original EAJA), and finally disposed 
of before August 5, 1985 (the effective date of the new law), this 30-
day period runs from the latter date. The proposed

[[Page 52698]]

regulation would amend section 13.22(a) to this effect.
    10. Section 1(B) of Pub. L. 99-80 provides that when the Government 
appeals the merits of a proceeding, any fee application is stayed until 
the appeal is finally resolved, and it specifies that a court decision 
is deemed to finally dispose of such an appeal only when that decision 
is final and unreviewable. There is a similar, but more inclusive, stay 
provision in section 13.22(d). The proposed regulation would amend 
sections 13.22(b) and (d) to conform with the statute. The proposed 
regulation would also revise section 13.23(a) to make clear that, when 
a fee proceeding is stayed in these circumstances, the agency need 
answer the fee application only after the final disposition of the 
underlying controversy.
    11. The proposed rule would revise section 13.27 to designate as 
the review authority on fee decisions the same person or component that 
would have jurisdiction over an appeal of the merits of the 
adjudication. It would eliminate as unnecessary the requirement that 
the appellate authority review fee awards where neither party appeals. 
It would also revise section 13.27(b) to provide for cross-exceptions 
to be filed from an initial decision on a fee application.
    12. Appendix A to the regulation lists the HHS proceedings that are 
covered by the regulation if the agency's litigating party enters an 
appearance and participates. The proposed regulation would revise the 
appendix to correct descriptions of categories of proceedings, to 
correct statutory citations for categories of proceedings, to add 
regulatory citations for categories, and to add new categories of 
proceedings that are covered.
    13. The legislative history of Pub. L. 99-80 contains several 
references to the Social Security Administration Representation 
Project, under which SSA representatives participated in certain 
disability hearings involving Social Security benefits or Supplemental 
Security Income benefits. That project was discontinued in 1987. See 52 
FR 17285 (May 7, 1987). We have taken the position that proceedings in 
that project were not within the scope of the EAJA as originally 
enacted, and thus Appendix A to the current regulation does not list 
them. The legislative history of Pub. L. 99-80 evidences the intent of 
some members of Congress that the EAJA as revised and amended should 
apply to cases in this project. As noted above, the project has been 
discontinued, and, in any case, the Social Security Administration is 
now an independent agency. However, we have determined that the EAJA 
should be applied to other HHS proceedings for which the statutory 
entitlement to a hearing rests either on a statute tracking the 
language of the provision underlying the disability hearings (section 
205(b) of the Social Security Act, 42 U.S.C. 405(b)), or on a statute 
incorporating that provision by reference. Thus, the proposed 
regulation would add these proceedings to Appendix A.

Economic Impact

    We have examined the impacts of this proposed rule as required by 
Executive Order 12866 (September 1993, Regulatory Planning and Review), 
the Regulatory Flexibility Act (RFA) (September 19, 1980 Pub. L. 96-
354), the Unfunded Mandates Reform Act of 1995 (Pub. L. 96-354), the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive 
Order 13132 (Federalism).
    Executive Order 12866 (the Order) directs agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). A 
regulatory impact analysis must be prepared for major rules with 
economically significant affects ($100 million or more in any 1 year).
    We have determined that the proposed rule is consistent with the 
principles set forth in the Order, and we also find that the proposed 
rule would not have economically significant effects. In addition, the 
rule is not a major rule as defined at 5 USC 804(2). In accordance with 
the provisions of the Order, this regulation was reviewed by the Office 
of Management and Budget.
    The Secretary certifies that this regulation will not have a 
significant economic impact on a substantial number of small entities. 
The basis for the Secretary's certification is that, although small 
entities are eligible to apply for awards, the regulation will apply 
only to a small number of the proceedings held by the Department each 
year, and, in many of those proceedings, there will not be any fee 
award because the Department's position will be substantially justified 
or its demand will be reasonable. Also, most of the changes reflected 
in the regulation are mandated by the statue, so it is the statute 
rather than the regulation that would have any impact. Finally, the 
procedures prescribed by the regulation are no more onerous than those 
imposed by the current rule. In sum, the regulation will have 
negligible effect on such entities.
    The Secretary states, in accordance with section 3(c) of Executive 
Order 12988 (Civil Justice Reform), that the Department has reviewed 
this regulatory proposal in light of section 3 of that Order and that 
the proposal meets the applicable standards in subsections (a) and (b) 
of that Order.
    Section 202 of the Unfunded Mandates Reform Act of 1995 requires 
that agencies assess anticipated costs and benefits before issuing any 
rule that may result in expenditure in any 1 year by State, local, or 
tribal governments, in the aggregate, or by the private sector, of $110 
million. As noted above, we find that this proposal would not have an 
effect of this magnitude on the economy.
    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. We have reviewed this proposed rule under the threshold 
criteria of Executive order 13132, and we find that there would be no 
substantial direct effect on the States, on the relationship between 
the States and the national Government, or on the distribution of power 
between the levels of government on our federal system. Thus, a 
federalism impact statement is not required.

Information Collection

    Under the Paperwork Reduction Act of 1995 (PRA), agencies are 
required to provide a 60-day notice in the Federal Register and solicit 
public comment before a collection of information requirement is 
submitted to the Office of Management and Budget (OMB) for review and 
approval. Subpart B of the proposed 45 CFR part 13 contains collection 
of information requirements. These collection of information 
requirements are necessary to carry out the provisions of the EAJA. In 
order to fairly evaluate whether an information collection should be 
approved by OMB, section 3506(c)(2)(A) of the PRA requires that we 
solicit comment on the following issues:

--Whether the information collection is necessary and useful to carry 
out the proper functions of the agency;
--The accuracy of the agency's estimate of the information collection 
burden;
--The quality, utility, and clarity of the information to be collected; 
and
--Recommendations to minimize the information collection burden on the

[[Page 52699]]

affected public, including automated collection techniques.

    Section 13.10 of the proposed rule contains the requirements for 
the application for an award of fees and expenses. The burden 
associated with these requirements is the time and effort necessary for 
an applicant to prepare and submit the application. On an annual basis 
it is estimated that it will take 10 applicants 20 hours each to 
prepare and submit an application. The total annual burden associated 
with this requirement is 200 hours.
    Section 13.11 of the proposed rule contains the requirements for 
the submission of the applicant's net worth exhibits. The burden 
associated with these requirements is the time and effort necessary for 
an applicant to prepare and submit the net worth exhibits. On an annual 
basis it is estimated that it will take 10 applicants 10 hours each to 
prepare and submit net worth exhibits. The total annual burden 
associated with this requirement is 100 hours.
    Section 131.12 of the proposed rules contains the requirements for 
submission of the applicant's documentation of fees and expenses. The 
burden associated with these requirements is the time and effort 
necessary for an applicant to prepare and submit the fee and expense 
documentation. On an annual basis it is estimated that it will take 10 
applicants 5 hours each to prepare and submit fee and expense 
documentation. The total annual burden associated with this requirement 
is 50 hours.
    The Department will submit a copy of this proposed Rule to OMB for 
its review of the information collection requirements described above. 
These requirements are not effective until they have been approved by 
OMB.
    If you comment on any of these information collection requirements, 
please mail copies directly to the following:

Cynthia Agens Bauer, OS Reports Clearance Officer, Room 503H, Humphrey 
Building, 200 Independence Avenue SW., Washington, DC 20201; and
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Room 10235, New Executive Office Building, Washington, DC 
20503, ATTN: Allison Eydt, HHS Desk Officer.

List of Subjects in 45 CFR Part 13

    Administrative practice and procedure, Claims, Equal access to 
justice.

    For the reasons set out in the preamble, the Secretary proposes to 
amend 45 CFR part 13 as follows:
    1. The authority citation for part 13 is revised to read as 
follows:

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

    2. In Sec. 13.1, the third sentence is revised to read as follows:


Sec. 13.1  Purpose of these rules.

    * * * the Department may reimburse parties for expenses incurred in 
adversary adjudications if the party prevails in the proceeding and if 
the Department's position in the proceeding was not substantially 
justified or if the action is one to enforce compliance with a 
statutory or regulatory requirement and the Department's demand is 
substantially in excess of the ultimate decision and is unreasonable 
when compared with that decision. * * *
    3. Section 13.2 is revised to read as follows:


Sec. 13.2  When these rules apply.

    These rules apply to adversary adjudications before the Department.
    4. Section 13.3 is amended by removing the last sentence in 
paragraph (a), by redesignating paragraph (b) as paragraph (c), and by 
adding a new paragraph (b) as follows:


Sec. 13.3  Proceedings covered.

* * * * *
    (b) If the agency's litigating party enters an appearance, 
Department proceedings listed in Appendix A to this part are covered by 
these rules. Also covered are any other proceedings under statutes that 
incorporate by reference the procedures of sections 1128(f), 
1128A(c)(2), or 1842(j)(2) of the Social Security Act, 42 U.S.C. 1320a-
7(f), 1320a-7a(c)(2), or 1395u(j)(2). If a proceeding is not covered 
under either of the two previous sentences, a party may file a free 
application as otherwise required by this part and may argue that the 
act covers the proceeding. Any coverage issue shall be determined by 
the adjudicative officer and, if necessary, by the appellate authority 
on review.
* * * * *
    5. Section 13.4(b) is revised to read as follows:


Sec. 13.4  Eligibility of applicants.

* * * * *
    (b) The categories of eligible applicants are as follows:
    (1) Charitable or other tax-exempt organizations described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (2) Cooperative associations as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 
employees;
    (3) Individuals with a net worth of not more than $2 million;
    (4) Sole owners of unincorporated businesses if the owner has a net 
worth of not more than $7 million, including both personal and business 
interests, and if the business has not more than 500 employees;
    (5) All other partnerships, corporations, associations, local 
governmental units, and public and private organizations with a net 
worth of not more than $7 million and with not more than 500 employees; 
and
    (6) Where an award is sought on the basis stated in Sec. 13.5(c) of 
this part, small entities as defined in 5 U.S.C. 601.
* * * * *
    6. Section 13.5 is amended by redesignating paragraphs (a) through 
(d) as paragraphs (b)(1) through (b)(4), respectively; adding new 
paragraph (a) and a paragraph (b) heading; revising newly designated 
paragraph (b)(1); and adding a new paragraph (c) to read as follows:


Sec. 13.5  Standards for awards.

    (a) An award of fees and expenses may be made either on the basis 
that the Department's position in the proceeding was not substantially 
justified or on the basis that, in a proceeding to enforce compliance 
with a statutory or regulatory requirement, the Department's demand 
substantially exceeded the ultimate decision and was unreasonable when 
compared with that decision. These two bases are explained in greater 
detail in paragraphs (b) and (c) of this section.
    (b) Awards where the Department's position was not substantially 
justified. (1) Awards will be made on this basis only where the 
Department's position in the proceeding was not substantially 
justified. The Department's position includes, in addition to the 
position taken by the agency in the proceeding, the agency action or 
failure to act that was the basis for the proceeding. Whether the 
Department's position was substantially justified is to be determined 
on the basis of the administrative record as a whole. The fact that a 
party has prevailed in a proceeding does not create a presumption that 
the Department's position was not substantially justified. The burden 
of proof as to substantial justification is on the agency's litigating 
party, which may avoid an award by showing that its position was 
reasonable in law and fact.
* * * * *
    (c) Awards where the Department's demand was substantially 
excessive and

[[Page 52700]]

unreasonable. (1) Awards will be made on this basis only where the 
adversary adjudication arises from the Department's action to enforce a 
party's compliance with a statutory or regulatory requirement. An award 
may be made on this basis only if the Department's demand that led to 
the proceeding was substantially in excess of the ultimate decision in 
the proceeding, and that demand is unreasonable when compared with that 
decision, given all the facts and circumstances of the case.
    (2) Any award made on this basis shall be limited to the fees and 
expenses that are primarily related to defending against the excessive 
nature of the demand. An award shall not include fees and expenses that 
are primarily related to defending against the merits of charges, or 
fees and expenses that are primarily related to defending against the 
portion of the demand that was not excessive, to the extent that these 
fees and expenses are distinguishable from the fees and expenses 
primarily related to defending against the excessive nature of the 
demand.
    (3) Awards will be denied if the party has committed a willful 
violation of law or otherwise acted in bad faith, or if special 
circumstances make an award unjust.
    7. In Sec. 13.6, the second sentence of paragraph (a) is removed 
and the first sentence of paragraph (b) is amended by removing 
``$75.00'' and adding in its place ``$125.00''.
    8.-9. In Sec. 13.10, paragraphs (a)(2) and (a)(3) and the first 
sentence of paragraph (a)(5) introductory text are revised; paragraph 
(a)(5)(i) is amended by removing the word ``or'' at the end and 
paragraph (a)(5)(ii) is amended by adding the word ``or'' at the end; 
and paragraph (a)(5)(iii) is added to read as follows:


Sec. 13.10  Contents of application.

    (a) * * *
    (2) Where an award is sought on the basis stated in Sec. 13.5(b) of 
this part, a declaration that the applicant believes it has prevailed, 
and an identification of the position of the Department that the 
applicant alleges was not substantially justified. Where an award is 
sought on the basis stated in Sec. 13.5(c) of this part, an 
identification of the statutory or regulatory requirement that the 
applicant alleges the Department was seeking to enforce, and an 
identification of the Department's demand and of the document or 
documents containing that demand;
    (3) Unless the applicant is an individual, a statement of the 
number of its employees on the date on which the proceeding was 
initiated, and a brief description of the type and purpose of its 
organization or business. However, where an award is sought solely on 
the basis stated in Sec. 13.5(c) of this part, the applicant need not 
state the number of its employees;
* * * * *
    (5) A statement that the applicant's net worth as of the date on 
which the proceeding was initiated did not exceed the appropriate 
limits as stated in Sec. 13.4(b) of this part. * * *
* * * * *
    (iii) It states that it is applying for an award solely on the 
basis stated in Sec. 13.5(c) of this part, and that it is a small 
entity as defined in 5 U.S.C. 601, and it describes the basis for its 
belief that it qualifies as a small entity under that section.
* * * * *
    10.-12. Section 13.11(a) is amended by removing the first sentence 
and adding in its place the sentences reading as follows:


Sec. 13.11  Net worth exhibits.

    (a) Each applicant must provide with its application a detailed 
exhibit showing the net worth of the applicant and any affiliates (as 
defined in Sec. 13.4(f) of this part) when the proceeding was 
initiated. This requirement does not apply to a qualified tax-exempt 
organization or cooperative association. Nor does it apply to a party 
that states that it is applying for an award solely on the basis stated 
in Sec. 13.5(c) of this part. * * *
* * * * *
    13. Section 13.12(d) is revised to read as follows:


Sec. 13.12  Documentation of fees and expenses.

* * * * *
    (d) The adjudicative officer may require the applicant to provide 
vouchers, receipts, or other substantiation for any fees or expenses 
claimed, pursuant to Sec. 13.25 of this part.
    14. Section 13.22 is amended by revising paragraphs (b) and (d), as 
follows:


Sec. 13.22  When an application may be filed.

* * * * *
    (b) For purposes of this rule, final disposition means the date on 
which a decision or order disposing of the merits of the proceeding or 
any other complete resolution of the proceeding, such as a settlement 
or voluntary dismissal, becomes final and unappealable, both within the 
agency and to the courts.
* * * * *
    (d) If review or reconsideration is sought or taken, whether within 
the agency or to the courts, of a decision as to which an applicant 
believes it has prevailed, proceedings on the application shall be 
stayed pending final disposition of the underlying controversy.
    15. In Sec. 13.23(a), the first sentence is removed and two 
sentences are added in its place to read as follows:


Sec. 13.23  Responsive pleadings.

    (a) The agency's litigating party shall file an answer within 30 
calendar days after service of the application or, where the proceeding 
is stayed as provided in Sec. 13.22(d) of this part, within 30 calendar 
days after the final disposition of the underlying controversy. The 
answer shall either consent to the award or explain in detail any 
objections to the award requested and identify the facts relied on in 
support of the agency's position. * * *
* * * * *
    16. Section 13.25(a) is amended by adding the following sentence at 
the end:


Sec. 13.25  Further proceedings.

    (a) * * * In no such further proceeding shall evidence be 
introduced from outside the administrative record in order to prove 
that the Department's position was, or was not, substantially 
justified.
* * * * *
    17. Section 13.27 is revised to read as follows:


Sec. 13.27  Agency review.

    (a) The appellate authority for any proceedings shall be the 
official or component that would have jurisdiction over an appeal of 
the merits.
    (b) If either the applicant or the agency's litigating party seeks 
review of the adjudicative officer's decision on the fee application, 
it shall file and serve exceptions within 30 days after issuance of the 
initial decision. Within another 30 days after receipt of such 
exceptions, the opposing party, if it has not done so previously, may 
file its own exceptions to the adjudicative officer's decision. The 
appellate authority shall issue a final decision on the application as 
soon as possible or remand the application to the adjudicative officer 
for further proceedings. Any party that does not file and serve 
exceptions within the stated time limit loses the opportunity to do so.
    18. Appendix A to part 13 is revised to read as follows:

Appendix A To Part 13

[[Page 52701]]



------------------------------------------------------------------------
                                                           Applicable
      Proceedings covered         Statutory authority      regulations
------------------------------------------------------------------------
                       Office of Inspector General
------------------------------------------------------------------------
1. Proceedings to impose civil  42 U.S.C. 1320a-        42 CFR Part
 monetary penalties,             7a(c)(2); 1320b-        1003; 42 CFR
 assessments, or exclusions      10(c); 1395l-           Part 1005.
 from Medicare and State         3(b)(3)(B)(ii),
 health care program.            (g)(2)(A)(i);
                                 1395l(h)(5)(D),
                                 (i)(6);
                                 1395m(a)(11)(A),
                                 (a)(18), (b)(5)(C),
                                 (j)(2)(A)(iii);
                                 1395u(j)(2), (k),
                                 (l)(3), (m)(3),
                                 (n)(3), (p)(3)(A);
                                 1395y(b)(3)(C),
                                 (b)(6)(B); 1395cc(g);
                                 1395dd(d)(1)(A), (B);
                                 1395mm(i)(6)(B);
                                 1395nn(g)(3), (4);
                                 1395ss(d);
                                 1395bbb(c)(1);
                                 1396b(m)(5)(B);
                                 1396r(b)(3)(B)(ii),
                                 (g)(2)(A)(i);
                                 1396t(i)(3);
                                 11131(c); 11137(b)(2).
2. Appeals of exclusions from   42 U.S.C. 1320a-7(f);   42 CFR Part
 Medicare and State health       13951(h)(5)(D);         1001; 42 CFR
 care programs and/or other      1395m(a)(11)(A),        Part 1005.
 programs under the Social       (b)(5)(C);
 Security Act.                   1395u(j)(2), (k),
                                 (l)(3), (m)(3),
                                 (n)(3), (p)(3)(B).
3. Appeal of exclusions from    42 U.S.C. 1320c-        42 CFR Part
 programs under the Social       5(b)(4), (5).           1004; 42 CFR
 Security Act, for which                                 Parts 1005.
 services may be provided on
 the recommendation of a Peer
 Review Organization.
4. Proceedings to impose civil  31 U.S.C. 3803........  45 CFR Part 79.
 penalties and assessments for
 false claims and statements.
------------------------------------------------------------------------
               Centers for Medicare and Medicaid Services
------------------------------------------------------------------------
1. Proceedings to suspend or    42 U.S.C. 263a(i);      42 CFR Part 493,
 revoke licenses of clinical     1395w-2.                Subpart R.
 laboratories.
2. Proceedings provided to a    42 U.S.C. 1395h(e)(1)-  42 CFR 421.114,
 fiscal intermediary before      (3).                    421.128.
 assigning or reassigning
 Medicare providers to a
 different fiscal intermediary.
3. Appeals of determinations    42 U.S.C. 1395cc(h);    42 CFR
 that an institution or agency   1395dd(d)(1)(A).        489.53(d); 42
 is not a Medicare provider of                           CFR Part 498.
 services, and appeals of
 terminations or nonrenewals
 of Medicare provider
 agreements.
4. Proceedings before the       42 U.S.C. 1395oo......  42 CFR Part 405,
 Provider Reimbursement Review                           Subpart R.
 Board when Department
 employees appear as counsel
 for the intermediary.
5. Appeals of CMS               42 U.S.C. 1396i.......  42 CFR Part 498.
 determinations that an
 intermediate care facility
 for the mentally retarded
 (ICFMR) no longer qualifies
 as an ICFMR for Medicaid
 purposes.
6. Proceedings to impose civil  42 U.S.C. 1395l-        42 CFR Part
 monetary penalties,             3(h)(2)(B)(ii); 13951-  1003.
 assessments, or exclusions      (q)(2)(B)(i);
 from Medicare and State         1395m(a)(11)(A),
 health care programs.           (c)(4)(C); 1395w-
                                 2(b)(2)(A); 1395w-
                                 4(g)(1), (g)(3)(B),
                                 (g)(4)(B)(ii); 1395nn-
                                 (g)(5); 1395ss-
                                 (a)(2), (p)(8),
                                 (p)(9)(C), (q)(5)(C),
                                 (r)(6)(A), (s)(3),
                                 (t)(2);
                                 1395bbb(f)(2)(A);
                                 1396r(h)(3)(C)(ii);
                                 1396r-8(b)(3)(B),
                                 (C)(ii);
                                 1396t(j)(2)(C);
                                 1396u(h)(2).
7. Appeals of exclusions from   42 U.S.C.               42 CFR Part 498;
 Medicare and State health       1395l(q)(2)(B)(ii);     42 CFR
 care programs and/or other      1395m(a)(11)(A),        1001.107.
 programs under the Social       (c)(5)(C); 1395w-
 Security Act.                   4(g)(1), (g)(3)(B),
                                 (g)(4)(B)(ii).
------------------------------------------------------------------------
                      Food and Drug Administration
------------------------------------------------------------------------
1. Proceedings to withdraw      21 U.S.C. 355(e)......  21 CFR Part 12:
 approval of new drug                                    21 CFR 314.200.
 applications.
2. Proceedings to withdraw      21 U.S.C. 360b(e), (m)  21 CFR Part 12;
 approval of new animal drug                             21 CFR Part
 applications and medicated                              514, Subpart B.
 feed applications.
3. Proceedings to withdraw      21 U.S.C. 306e(e), (g)  21 CFR Part 12.
 approval of medical device
 premarket approval
 applications.
------------------------------------------------------------------------
                         Office for Civil Rights
------------------------------------------------------------------------
1. Proceedings to enforce       42 U.S.C. 2000d-1.....  45 CFR 80.9.
 Title VI of the Civil Rights
 Act of 1964, which prohibits
 discrimination on the basis
 of race, color or national
 origin by recipients of
 Federal financial assistance.
2. Proceedings to enforce       29 U.S.C. 794a; 42      45 CFR 84.61.
 section 504 of the              U.S.C. 2000d-1.
 Rehabilitation Act of 1973,
 which prohibits
 discrimination on the basis
 of handicap by recipients of
 Federal financial assistance.
3. Proceedings to enforce the   42 U.S.C. 6104(a).....  45 CFR 91.47.
 Age Discrimination Act of
 1975, which prohibits
 discrimination on the basis
 of age by recipients of
 Federal financial assistance.
4. Proceedings to enforce       20 U.S.C. 1682........  45 CFR 86.71.
 Title IX of the Education
 Amendments of 1972, which
 prohibits discrimination on
 the basis of sex in certain
 education programs by
 recipients of Federal
 financial assistance.
------------------------------------------------------------------------



[[Page 52702]]

    Dated: May 10, 2002.
Tommy G. Thompson,
Secretary.

[FR Doc. 02-20307 Filed 8-12-02; 8:45 am]
BILLING CODE 4150-26-M