DOT 49 CFR PART 1016-2010 SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS.pdf

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1、46 49 CFR Ch. X (10110 Edition) 1014.1711014.999 date of receipt of the additional infor-mation to make his or her determina-tion on the appeal. (k) The time limits cited in para-graphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General. (l) The agency

2、may delegate its au-thority for conducting complaint in-vestigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency. 51 FR 22896, June 23, 1986, as amended at 51 FR 22896, June 23, 1986; 64 FR 53267, Oct. 1, 1999 1014.17

3、11014.999 Reserved PART 1016SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS Subpart AGeneral Provisions Sec. 1016.101 Purpose of these rules. 1016.102 When the Act applies. 1016.103 Proceedings covered. 1016.104 Decisionmaking authority. 1016.105 El

4、igibility of applicants. 1016.106 Standards for awards. 1016.107 Allowable fees and expenses. 1016.109 Awards against other agencies. Subpart BInformation Required From Applicants 1016.201 Contents of application. 1016.202 Net worth exhibit. 1016.203 Documentation of fees and ex-penses. Subpart CPro

5、cedures for Considering Applications 1016.301 When an application may be filed. 1016.302 Filing and service of documents. 1016.303 Answer to application. 1016.304 Reply. 1016.305 Comments by other parties. 1016.306 Settlement. 1016.307 Further proceedings. 1016.308 Decision. 1016.309 Agency review.

6、1016.310 Judicial review. 1016.311 General provisions. AUTHORITY: 5 U.S.C. 504(c)(1), 49 U.S.C. 721. SOURCE: 46 FR 61660, Dec. 18, 1981, unless otherwise noted. Subpart AGeneral Provisions 1016.101 Purpose of these rules. The Equal Access to Justice Act (5 U.S.C. 504) (called the Act in this part),

7、provides for the award of attor-ney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (called adversary adjudications) be-fore the Surface Transportation Board. An eligible party may receive an award when it prevails over the Board or

8、an-other agency of the United States par-ticipating in the Board proceeding, un-less the Boards position in the pro-ceeding, or that of the other agency, was substantially justified or special circumstances make an award unjust. The rules in this part describe the par-ties eligible for awards and th

9、e pro-ceedings that are covered. They also explain how to apply for awards, and the procedures and standards that the Board will use to make them. 1016.102 When the Act applies. The Act applies to any adversary ad-judication pending before the Board after October 1, 1981. This includes pro-ceedings

10、begun before October 1, 1981, if final Board action has not been taken before that date, regardless of when they were initiated or when final Board action occurs. These rules incorporate the changes made in Pub. L. No. 9980, 99 Stat. 183, which applies generally to cases instituted after October 1,

11、1984. If awards are sought for cases pending on October 1, 1981 or filed between that date and September 30, 1984, the prior statutory provisions (to the extent they differ from the existing ones, and our implementing rules) apply. 54 FR 26379, June 23, 1989 1016.103 Proceedings covered. (a) The Act

12、 applies to adversary adju-dications conducted by the Board under 5 U.S.C. 554 in which the position of this or any other agency of the United States, or any component of an agency, is presented by an attorney or other representative (hereinafter agency counsel) who enters an ap-pearance and partici

13、pates in the pro-ceeding. Proceedings for the purpose of establishing or fixing a rate are not VerDate Mar2010 15:03 Nov 23, 2010 Jkt 220219 PO 00000 Frm 00056 Fmt 8010 Sfmt 8010 Y:SGML220219.XXX 220219jdjones on DSKHWCL6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permi

14、tted without license from IHS-,-,-47 Surface Transportation Board, DOT 1016.105 covered by the Act. Proceedings to grant or renew licenses are also ex-cluded, but proceedings to modify, sus-pend, or revoke licenses are covered if they are otherwise adversary adju-dications. Generally, the types of B

15、oard proceedings covered by the Act include, but are not limited to, inves-tigation proceedings instituted under 49 U.S.C. 11701 and 49 U.S.C. 10925 and disciplinary proceedings conducted pursuant to 49 CFR 1100.11. (b) The Board may also designate a proceeding not listed in paragraph (a) of this se

16、ction as an adversary adju-dication for purposes of the Act by so stating in an order initiating the pro-ceeding, designating the matter for hearing or at any other time during the proceeding. The Boards failure to designate a proceeding as an adversary adjudication shall not preclude the fil-ing of

17、 an application by a party who believes the proceeding is covered by the Act; whether the proceeding is cov-ered will then be an issue for resolution in proceedings on the application. (c) If a proceeding includes both mat-ters covered by the Act and matters specifically excluded from coverage, any

18、award made will include only fees and expenses related to covered issues. 1016.104 Decisionmaking authority. Unless otherwise ordered by the Board in a particular proceeding, each application for an award under this part shall be assigned for decision to the official or decisionmaking body that ente

19、red the decision in the adver-sary adjudication. That official or deci-sionmaking body is referred to in this part as the adjudicative officer. 46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26379, June 23, 1989 1016.105 Eligibility of applicants. (a) To be eligible for an award of at-torney fees a

20、nd other expenses under the Act, the applicant must be a party to the adversary adjudication for which it seeks an award, it must have stood in an adversary relationship to the po-sition taken by agency counsel, and it must have prevailed on one or more of the issues raised by agency counsel. The te

21、rm partyis defined in 5 U.S.C. 504(b)(1)(B). The applicant must show that it meets all conditions of eligi-bility set out in this subpart and in Subpart B. (b) The types of eligible applicants are as follows: (1) An individual whose net worth did not exceed $2 million at the time the adversary adjud

22、ication was initiated; (2) Any owner of an unincorporated business, or any partnership, corpora-tion, association, unit of local govern-ment, or organization whose net worth does not exceed $7 million and which had no more than 500 employees at the time the adversary adjudication was initiated; (3)

23、Any organization described in sec-tion 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3) exempt from taxation under section 501(a) of such Code, or a cooperative association as defined in section 15(a) of the Agri-cultural Marketing Act (12 U.S.C. 1141j(a), may be a party regardles

24、s of the net worth of such organization or cooperative association. (c) For the purpose of eligibility, the net worth and number of employees of an applicant shall be determined as of the date the proceeding was initiated. (d) The employees of an applicant in-clude all persons who regularly per-form

25、 services for remuneration for the applicant, under the applicants direc-tion and control. Part-time employees shall be included on a proportional basis. Independent contractors under lease to motor carriers are not employ-ees of the carriers under these rules. Also, agents for motor common car-rier

26、s of household goods are not em-ployees of their respective principal carriers. (e) The net worth and number of em-ployees of the applicant and all of its affiliates shall be aggregated to deter-mine eligibility. Any individual, cor-poration or other entity that directly or indirectly controls or ow

27、ns a major-ity of the voting shares or other inter-est of the applicant or any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest, will be considered an af-filiate for purposes of this part, unless the adjudica

28、tive officer determines that such treatment would be unjust and contrary to the purposes of the Act VerDate Mar2010 15:03 Nov 23, 2010 Jkt 220219 PO 00000 Frm 00057 Fmt 8010 Sfmt 8010 Y:SGML220219.XXX 220219jdjones on DSKHWCL6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking

29、permitted without license from IHS-,-,-48 49 CFR Ch. X (10110 Edition) 1016.106 in light of the actual relationship be-tween the affiliated entities. In addi-tion, the adjudicative officer may de-termine that financial relationships of the applicant other than those de-scribed in this paragraph cons

30、titute special circumstances that would make an award unjust. (f) An applicant that participates in a proceeding primarily on behalf of one or more other persons or entities that would be ineligible is not itself eligible for an award. 46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26379, June 23,

31、1989 1016.106 Standards for awards. (a) A prevailing applicant may re-ceive an award for fees and expenses in-curred in connection with a proceeding, or in a significant and discrete sub-stantive portion of the proceeding, un-less the position of the agency over which the applicant has prevailed was

32、 substantially justified. Whether or not the position of the agency was substan-tially justified shall be determined on the basis of the administrative record made in the adversary adjudication for which fees and other expenses are sought. The burden of proof that an award should not be made to an e

33、ligi-ble prevailing applicant is on the agen-cy counsel, which may avoid an award by showing that its position was rea-sonable in law and fact. (b) An award will be reduced or de-nied if the applicant has unduly or un-reasonably protracted the proceeding or if special circumstances make the award so

34、ught unjust. 46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26379, June 23, 1989 1016.107 Allowable fees and ex-penses. (a) Awards will be based on rates cus-tomarily charged by persons engaged in the business of acting as attorneys, agents and expert witnesses, even if the services were made avail

35、able without charge or at a reduced rate to the ap-plicant. (b) No award for the fee of an attor-ney or agent under these rules may ex-ceed $75.00 per hour, unless a higher fee is justified. 5 U.S.C. 504(b)(1)(A). How-ever, an award may also include the reasonable expenses of the attorney, agent, or

36、 witness as a separate item, if the attorney, agent, or witness ordi-narily charges clients separately for such expenses. (c) In determining the reasonableness of the fee sought for an attorney, agent or expert witness, the adjudicative offi-cer shall consider the following: (1) If the attorney, age

37、nt or witness is in private practice, his or her cus-tomary fee for similar services, or, if an employee of the applicant, the fully allocated cost of the services; (2) The prevailing rate for similar services in the community in which the attorney, agent, or witness ordinarily performs services; (3

38、) The time actually spent in the representation of the applicant; (4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and (5) Such other factors as may bear on the value of the services provided. (d) The reasonable cost of any study, analysis, engi

39、neering report, test, project or similar matter prepared on behalf of a party may be awarded, to the extent that the charge for the serv-ice does not exceed the prevailing rate for similar services, and the study or other matter was necessary for prepa-ration of the applicants case. 46 FR 61660, Dec

40、. 18, 1981, as amended at 54 FR 26379, June 23, 1989 1016.109 Awards against other agen-cies. If an applicant is entitled to an award because it prevails over another agency of the United States that par-ticipates in a proceeding before this agency and takes a position that is not substantially just

41、ified, the award or an appropriate portion of the award shall be made against that agency. Subpart BInformation Required From Applicants 1016.201 Contents of application. (a) An application for an award of fees and expenses under the Act shall identify the applicant and the pro-ceeding for which an

42、award is sought. The application shall show that the ap-plicant has prevailed and identify the VerDate Mar2010 15:03 Nov 23, 2010 Jkt 220219 PO 00000 Frm 00058 Fmt 8010 Sfmt 8010 Y:SGML220219.XXX 220219jdjones on DSKHWCL6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permi

43、tted without license from IHS-,-,-49 Surface Transportation Board, DOT 1016.301 position of the Board or other agencies in the proceeding that the applicant al-leges was not substantially justified. Unless the applicant is an individual, the application shall also state the number of employees of th

44、e applicant and describe briefly the type and pur-pose of its organization or business. (b) The application shall also include a statement that the applicants net worth does not exceed $2 million (if an individual) or $7 million (for all other applicants, including their affiliates). However, an app

45、licant may omit this statement if: (1) It attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described in section 501(c)(3) of the Internal Rev-enue Code (26 U.S.C. 501(c)(3) exempt from taxation under section 501(a) of such Code; or (2) It states that i

46、t is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a). (c) The application shall state the amount of fees and expenses for which an award is sought. (d) The application may also include any other matters that the applicant wishes the Board t

47、o consider in deter-mining whether and in what amount an award should be made. (e) The application shall be signed by the applicant or an authorized officer or attorney of the applicant. It shall also contain or be accompanied by a written verification under oath or under penalty of perjury that the

48、 infor-mation provided in the application is true and correct. 46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989 1016.202 Net worth exhibit. (a) Each applicant must provide with its application a detailed exhibit show-ing the net worth of the applicant and any affiliates (as defin

49、ed in 1016.105(f) of this part) when the proceeding was initiated. The exhibit may be in any form convenient to the applicant that provides full disclosure of the appli-cants and its affiliates assets and li-abilities and is sufficient to determine whether the applicant qualifies under the standards in this part. The adju-dicative officer may require an appli-cant to file additional information to determine