1937, the Secretary of HUD must establish performance criteria by regulation if he adjusts the formula allocation for the program. The program provides grants to states, urban counties, and units of general local government to help support the rehabilitation of privately owned real property to be used for primarily residential rental purposes. The program is designed to increase the supply of standard housing units affordable to lower income families. This final rule at 24 C.FR. Part 511 was to be effective May 19, 1987. 52 Fed. Reg. 11466 (Apr. 9, 1987).

Manufactured Home Construction and Safety Standards. HUD updates its list of state administrative agencies that have been fully or conditionally approved by the Secretary of HUD to enforce HUD's manufactured home construction and safety standards. This final rule at 24 C.FR. Part 3283 was to be effective May 20, 1987. 52 Fed. Reg. 11644 (Apr. 10, 1987).

Neighborhood Development Demonstration Program. HUD has appropriated funds for FY 1987 to carry out, for a second round, the Neighborhood Development Demonstration program under section 123 of the Housing and Urban-Rural Recovery Act of 1983. The purpose of this program is to determine the ability of neighborhood organizations to support eligible neighborhood development activities using cooperative efforts and monetary contributions from individuals, businesses, and nonprofit and other organizations located within established neighborhood boundaries. The federal funds are incentive funds to promote the development of this concept, and to encourage neighborhood organizations to become more self-sufficient in their development activities. This notice of fund availability was effective April 10, 1987. Applications were due by July 9, 1987. 52 Fed. Reg. 11802 (Apr. 10, 1987).

Section 502 Rural Housing Loans. The Farmers Home Administration amends its regulation regarding section 502 rural housing loans. The intended effect of this action is (1) to reduce the cost of housing to the borrower, thereby enabling a greater number of very low-income persons to obtain adequate, modest houses; and (2) to reduce the overall cost of the program to the government. This final rule at 7 C.ER. Parts 1922, 1944, and 1951 was to be effective May 14, 1987. 52 Fed. Reg. 11981 (Apr. 14, 1987).

Production and Disclosure of Information by HUD Employees. The Secretary of HUD changes its regulations at 24 C.ER. Part 15 governing the production and disclosure of material or information by HUD employees. The Secretary (1) adds a new subpart relating to testimony by employees in response to subpoenas or other official demands, and (2) eliminates the requirement that former employees

who are served with subpoenas or other official demands obtain the Secretary's approval before responding to the demands. This final rule at 24 C.FR. Part 15 was to be effective May 20, 1987. 52 Fed. Reg. 12159 (Apr. 15, 1987).

IMMIGRATION

Asylum Policy Review Unit. The Department of Justice is issuing an order to reflect the creation of the Asylum Policy Review Unit within the Office of Legal Policy. This unit will compile information relevant to asylum decisions and assist the Attorney General, the Deputy Attorney General, and INS in coordinating related matters. This final rule amending 28 C.FR. Part 0 was effective March 30, 1987. 52 Fed. Reg. 11043 (Apr. 7, 1987).

Labor Certification Process for the Permanent Employment of Aliens. Pursuant to section 212(a)(14) of the Immigration and Nationality Act, certain immigrant aliens seeking to enter the United States to secure permanent employment are excluded from entering, unless the Secretary of Labor first certifies in each such case that (1) there are not sufficient U.S. workers who are able, willing, qualified, and available for the job opportunity at the time of the alien's application for a visa and admission into the U.S. and at the place where the alien is to perform the work; and (2) the employment of the alien will not adversely affect the wages and working conditions of U.S. workers similarly employed. The Department is revising its procedures at 20 C.FR. Part 656 for review of denials of certifications by establishing a Board of Alien Labor Certification Appeals in the Office of Administrative Law Judges to hear and decide such appeals. This final rule applies to requests for review filed on or after May 8, 1987. 52 Fed. Reg. 11217 (Apr. 8, 1987).

Work Authorization. In Catholic Social Services, Inc. v. Meese, Civil No. S-86-1343-LKK (E.D. Cal. 1987), a district court approved a stipulation of partial settlement that will result in dismissing with prejudice a renewal of claims to obtain work authorization papers from INS prior to the time when formal amnesty" applications may be filed (June 1, 1987, for "special agricultural worker" applications and May 5, 1987, for "legalization" applications). A class composed of aliens who are potentially eligible for benefits under the Immigration Reform and Control Act (IRCA) of 1986 sought this renewal of claims. INS's policy is not to give work authorization to aliens who present nonfrivolous or prima facie claims to "amnesty" relief under sections 210 and 245A of the Immigration and Nationality Act, as amended by the IRCA, (1) if those aliens were apprehended by the INS prior to November 6, 1986, and had been released as of that date, or (2) if those aliens voluntarily surrender themselves to the INS. INS is giving notice to the class to explain the

scope and effect of the proposed dismissal with prejudice of the classwide work authorization claims. 52 Fed. Reg. 11567 (Apr. 9, 1987).

Approval of Readmission of Certain Aliens. INS provides for the approval of applications pursuant to section 212(c) of the Immigration and Nationality Act for certain aliens who wish to depart from the United States and later return to their unrelinquished domicile in the United States. The approval would be in effect only for the specific grounds of exclusion and/or deportation described in the application for which relief is granted. This final rule at 8 C.FR. Part 212 was effective May 11, 1987. 52 Fed. Reg. 11620 (Apr. 10, 1987).

Change of Nonimmigrant Classification. INS will implement section 312 of the Immigration Reform and Control Act of 1986 to provide instructions that concern applying for a change to nonimmigrant (N) status while in the United States. Subsection N status relates to nonimmigrant status for certain parents and children of aliens given special immigrant status. The interim rule at 8 C.FR. Part 248 was effective November 6, 1986. 52 Fed. Reg. 11621 (Apr. 10, 1987).

MENTAL HEALTH

Delegation of Authority. The Secretary of HHS delegates to the Assistant Secretary for Health all authorities vested in the Secretary under Title I of the Protection and Advocacy for Mentally Ill Individuals Act of 1986, as amended. 52 Fed. Reg. 10815 (Apr. 3, 1987).

MIGRANTS

Certification of Agricultural and Logging Employees. The Employment and Training Administration is amending regulations at 20 C.F.R. Part 655 concerning certifying temporary employment of nonimmigrant aliens in agriculture and logging in the United States. The final rule, which was effective May 11, 1987, changes the procedures for adjusting piece rates employers offer and pay their United States and alien workers. The rule requires each piece rate to be no less than the prevailing piece rate for the crop activity in the area of intended employment. It also sets limitations on minimum productivity standards. 52 Fed. Reg. 11460 (Apr. 9, 1987).

NATIVE AMERICANS

Vocational Education Indian and Hawaiian Natives Program. Applications for new awards for FY 1988 under the Vocational Education Indian and Hawaiian Natives Program must be submitted by July 15, 1987. This application notice provides financial support only to Indian tribes (not Hawaiian natives) to plan, conduct, and administer projects or portions of projects

that are authorized by and consistent with the Carl D. Perkins Vocational Education Act. 52 Fed. Reg. 11530 (Apr. 9, 1987).

Administration of Trust Funds. The Bureau of Indian Affairs proposes to strengthen its internal management and administration of trust funds by procuring collection, accounting, investment, and investment custodial services. The Bureau will follow a prescribed consultation process with Indian tribes to address their concerns and suggestions. 52 Fed. Reg. 12348 (Apr. 15, 1987).

PUBLIC UTILITIES/ENERGY

Average Costs of Residential Energy Sources. The Department of Energy is forecasting the representative average unit costs of five residential energy sources for the year 1987. The five sources are electricity, natural gas, No. 2 heating oil, propane, and kerosene. These costs are used under the Federal Trade Commission labeling program established by section 324 of the Energy Policy and Conservation Act, as amended, and in connection with advertisements of appliance energy use and energy costs that are covered by section 323(c) of the Act. The costs of energy contained in this notice were effective May 4, 1987. 52 Fed. Reg. 10606 (Apr. 2, 1987).

Refund of Crude Oil Overcharge Funds. In this notice, the Department of Energy considers the comments received by the Office of Hearings and Appeals (OHA) in response to its August 8, 1986, order implementing the DOE's modified policy for restitution of crude oil overcharges published at 51 Fed. Reg. 29689 (Aug. 20, 1986). This notice also explains the procedures that the OHA will follow in processing applications filed under the DOE's regulations under 10 C.FR. Part 205, Subpart V for refunds of the crude oil overcharge funds. DOE's new policy was issued in connection with the settlement of In re Department of Energy Stripper Well Exemption Litigation, 578 F. Supp. 586 (D. Kan. 1983). The policy specifies that 20 percent of crude oil overcharges will be set aside to satisfy refund claims, and 80 percent will be disbursed to the state and federal governments for indirect restitution. 52 Fed. Reg. 11737 (Apr. 10, 1987).

ment is an adequate means of resolving these conflicts, and thus there is no need at this time to codify the proposed procedures. This withdrawal at 10 C.FR. Part 2 was effective April 15, 1987. 52 Fed. Reg. 12192 (Apr. 15, 1987). RURAL ISSUES

Loan Summary Statement. In order to implement certain provisions of the Food Security Act of 1985, the Farmers Home Administration is changing its regulations to advise FmHA field offices of the procedures to be followed when a borrower requests a loan summary statement for any loan made or insured under the Consolidated Farm and Rural Development Act. This final rule at 7 C.FR. Part 1951 was effective April 9, 1987. 52 Fed. Reg. 11456 (Apr. 9, 1987).

Farm Credit System Capital Corporation. The Farm Credit Administration (FCA) promulgated final regulations at 51 Fed. Reg. 8665 (Mar. 13, 1986) applicable to the Farm Credit System Capital Corporation. The FCA issued the regulations as final rules in order for the Capital Corporation to organize and exercise its powers to address the financial difficulties experienced by Farm Credit System institutions. Nevertheless, the FCA gave the public an opportunity to comment until August 18, 1986. The FCA has carefully considered the public comments and adopted amendments to the regulations. The regulation at 12 C.ER. Part 611 was to become effective 30 days after April 15, 1987, during which 30 days either or both houses of Congress were in session. 52 Fed. Reg. 12135 (Apr. 15, 1987).

Lending Operations. The Farm Credit Administration Board amends existing regulations published at 51 Fed. Reg. 39486 (Oct. 28, 1986) governing the lending operations of Farm Credit System institutions. The amendments relate to (1) the requirements that each borrower be provided with his or her effective interest rate; (2) the requirement that banks for cooperatives comply with the provisions of 12 C.FR. Part 614; (3) the right of persons who seek forbearance and submit an application for the renewal, extension, deferral, etc. of the terms of an existing loan to seek review by a credit review committee of the denial of such application; and (4) the requirement that the Farm Credit System Capital Corporation develop a written policy on forbearance and establish a credit review committee. This final rule at 12 C.FR. Part 614 was to become effective 30

special procedures for resolving conflicts concerning the disclosure or nondisclosure of information (1) in an NRC investigation or inspection not yet concluded, or (2) that would reveal the identity of a confidential informant and be deemed relevant and material to an adjudication. NRC believes that an existing policy state

either or both houses of Congress were in session. 52 Fed. Reg. 12143 (Apr. 15, 1987).

SENIOR CITIZENS

Age Discrimination. The Economic Development Administration amends its civil rights reg

ulations to include a recent final rule promulgated by the Department of Commerce at 51 Fed. Reg. 28925 (Aug. 13, 1986). The Department rule at 15 C.FR. Part 20 establishes procedures to implement the Age Discrimination Act of 1975, as amended. This final rule at 13 C.FR. Part 311 was effective September 12, 1986. 52 Fed. Reg. 11626 (Apr. 10, 1987). TAXATION

Exempt Organizations Advisory Group. The IRS has established an Exempt Organizations Advisory Group to advise the Commissioner of Internal Revenue on current problems and issues affecting the administration of section 501(c) of the Internal Revenue Code relating to organizations exempt from federal income tax. 52 Fed. Reg. 12637 (Apr. 17, 1987).

TRANSPORTATION

Charter Service. The Urban Mass Transportation Administration (UMTA) revises its regulations governing the charter service that UMTA's recipients may provide using UMTA-funded equipment or facilities. With a few exceptions, UMTA recipients will now be prohibited from providing any charter service using UMTA-funded equipment or facilities if there is at least one private charter operator willing and able to provide the charter service that the recipient desires to provide. This final rule at 49 C.FR. Part 604 was effective May 13, 1987. 52 Fed. Reg. 11916 (Apr. 13, 1987).

VETERANS/MILITARY

Computer Matching Program. The VA is providing notice that the Office of Inspector General will match lists of veterans, dependents, and survivors of veterans who have incurred indebtedness to the VA as a result of participation in various benefits programs with lists derived from state income records. The goal of the matching program is to determine the ability of these persons to repay or reduce their obligations to the VA. The matching was supposed to begin in approximately March 1987. 52 Fed. Reg. 10965 (Apr. 6, 1987).

VA Health Care. The VA is making technical changes to its health care regulations to conform with Title II of the Veterans' Benefit Improvement and Health Care Authorization Act of 1986. That Act provides that all persons receiving disability compensation pursuant to 38 U.S.C. § 351 are included in the highest VA health care eligibility category. The statute also limits the total copayments certain non-serviceconnected veterans must agree to pay for VA health care equal to four times the inpatient Medicare deductible. These final regulations amending 38 C.FR. Part 17 were effective April 7, 1987. 52 Fed. Reg. 11259 (Apr. 8, 1987).

ATTORNEYS/LEGAL SERVICES

Sixth Circuit Rules "Substantially Justified" Requires More than Reasonableness for Attorney Fee Award Under the EAJA

42,474. Riddle v. Secretary of HHS, No. 86-5228 (6th Cir. filed May 11, 1987). Plaintiff-Appellant represented by Stuart Warren, Western Kentucky Legal Services, 117 W. Second St., Owensboro, KY 42301, (502) 683-4585. [Here reported: (Accession No. 1009994) 42,474A Memo (4pp.); 42,474B DefAppellee's Brief (19pp.); 42,474C Appellant's Brief (25pp.); 42,474D Opinion (28pp.); 42,474E Motion for Extension of Time Within Which to File Petition for Rehearing (2pp.).]

The appellate court for the sixth circuit entered an order granting claimant attorney fees after finding that legislative history of the Equal Access to Justice Act (EAJA) permits the court to alter the definition of "substantially justified" to something more than merely reasonable. Claimant was a selfemployed farmer who was seriously injured in an automobile accident in December 1981. Claimant subsequently applied for disability benefits and was denied them after the ALJ determined that he was able to perform sedentary work and therefore was not disabled. Claimant appealed this decision to the district court, which granted summary judgment in claimant's favor. Following the reversal of defendant Secretary of HHS's denial of benefits, claimant petitioned for an award of attorney fees under the EAJA. The district court denied claimant's petition, stating that defendant's position was reasonable, and therefore substantially justified. The appellate court concluded that, in order to be substantially justified, defendant's position must have more than a reasonable basis in law and fact. The court reasoned that the clear legislative intent of the EAJA is to reject the reasonableness test. The court also noted that the district court found that none of the evidence contributed to defendant's burden of proving that claimant was capable of performing sedentary work, and, since defendant had already conceded that claimant could not return to his previous work, the absence of any evidence demonstrating claimant's ability to perform other work indicates that there was not a solid factual basis for defendant's position.

Briefs Filed in Eleventh Circuit in Appeal of Denial of Attorney Fees Under EAJA in Disability Case 42,436. Stratton v. Bowen, No. 86-3637 (11th Cir. filed Apr. 23, 1987). Appellant represented by Sarah Bohr, Jacksonville Area Legal Aid, 604 Hogan St., Jacksonville, FL 32202, (904) 356-8371. [Here reported: (Accession No. 1009961) 42,436A Appellant's Brief (27pp.); 42,436B Appellee's Brief (57pp.); 42,436C Appellant's Reply Brief (35pp.).]

Briefs have been filed in the Eleventh Circuit in this social security disability case in which plaintiff seeks review of the district court's denial of attorney fees under the EAJA. The court denied fees based on a finding that the Secretary's litigation position was substantially justified under the circumstances. Plaintiff asserts that the court abused its discretion by applying an incorrect legal standard in determining entitlement to fees. He contends that the court erred by limiting its consideration of the position of the United States to the government's litigation position. Plaintiff argues that the EAJA's 1985 amendments clarify that the term "position of the United States" is not limited to the position before the courts, but also includes the government's position within the administrative process. Secondly, plaintiff claims the court erred by failing to take into consideration changes under the EAJA amendments indicating that the substantial justification standard is intended to be a less stringent standard than that adopted by many courts. Finally, plaintiff maintains the court erred in finding the government's position was substantially justified, as the Secretary's position was based on an incorrect legal standard. Plaintiff asserts that, in evaluating the severity of his impairments, the Secretary ignored overwhelming and uncontradicted evidence of severity in the record. The Secretary argues that his position was justified because plaintiff prevailed based on an Eleventh Circuit decision that had not been decided at the time this case was initially adjudicated. Plaintiff responds that the government's position was not justified because it was SSA's conduct in misapplying the severity standard that resulted in a need for clarification of that standard provided by the Eleventh Circuit in the subsequent case.