DOT 49 CFR PART 6-2010 IMPLEMENTATION OF EQUAL ACCESS TO JUSTICE ACT IN AGENCY PROCEEDINGS.pdf

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1、53 Office of the Secretary of Transportation Pt. 6 (2) Are nonsubstantive clarifications or corrections to existing rules, (3) Update existing forms, (4) Make minor changes in the sub-stantive rules regarding statistics and reporting requirements, (5) Make changes to the rules imple-menting the Priv

2、acy Act, and (6) Adopt technical standards set by outside organizations. (b) The FEDERAL REGISTER document will state that any adverse comment or notice of intent to submit adverse com-ment must be received in writing by the Office of the Secretary within the specified time after the date of publica

3、-tion and that, if no written adverse comment or written notice of intent to submit adverse comment is received, the rule will become effective a speci-fied number of days after the date of publication. (c) If no written adverse comment or written notice of intent to submit ad-verse comment is recei

4、ved by the Of-fice of the Secretary within the speci-fied time of publication in the FEDERAL REGISTER, the Office of the Secretary will publish a notice in the FEDERAL REGISTER indicating that no adverse comment was received and confirming that the rule will become effective on the date that was ind

5、icated in the di-rect final rule. (d) If the Office of the Secretary re-ceives any written adverse comment or written notice of intent to submit ad-verse comment within the specified time of publication in the FEDERAL REGISTER, a notice withdrawing the di-rect final rule will be published in the fin

6、al rule section of the FEDERAL REG-ISTER and, if the Office of the Secretary decides a rulemaking is warranted, a notice of proposed rulemaking will be published in the proposed rule section of the FEDERAL REGISTER. (e) An adverse comment for the purpose of this subpart means any comment that the Of

7、fice of the Sec-retary determines is critical of the rule, suggests that the rule should not be adopted, or suggests a change that should be made in the rule. A comment suggesting that the policy or require-ments of the rule should or should not also be extended to other Departmental programs outsid

8、e the scope of the rule is not adverse. 69 FR 4458, Jan. 30, 2004 APPENDIX A TO PART 5 Pursuant to 5.1(b), the following officials of the Office of the Secretary of Transpor-tation are authorized to conduct rulemaking proceedings under this part, as specified in this appendix: (1) The General Counse

9、l is authorized to conduct all rule-making proceedings, except the issuance of final rules, under the Act of March 19, 1918, ch. 24, as amended (15 U.S.C. 261264); the Uniform Time Act of 1966 (80 Stat. 107, 15 U.S.C. 260267); and section 6(e)(5) of the Department of Transportation Act (80 Stat. 939

10、, 49 U.S.C. 1655 (e)(5). (2) The General Counsel is authorized to determine the practicability of applying the standard time of any standard time zone to the movements of any common carrier en-gaged in interstate or foreign commerce, and, under section 2 of the Act of March 19, 1918, ch. 24, as amen

11、ded (15 U.S.C. 262), to issue operating exceptions in any case in which he determines that it is impractical to apply the standard time. Amdt. 51, 32 FR 11473, Aug. 9, 1967 PART 6IMPLEMENTATION OF EQUAL ACCESS TO JUSTICE ACT IN AGENCY PROCEEDINGS Subpart AGeneral Provisions Sec. 6.1 Purpose of these

12、 rules. 6.3 Applicability. 6.5 Proceedings covered. 6.7 Eligibility of applications. 6.9 Standards for awards. 6.11 Allowable fees and expenses. 6.13 Delegations of authority. Subpart BInformation Required from Applicants 6.17 Contents of application. 6.19 Net worth exhibit. 6.21 Documentation of fe

13、es and expenses. Subpart CProcedures for Considering Applications 6.23 Filing and service of documents. 6.25 Answer to application. 6.27 Comments by other parties. 6.29 Settlement. 6.31 Further proceedings. 6.33 Decision. 6.35 Agency review. 6.37 Judicial review. 6.39 Payment of award. VerDate Mar20

14、10 10:00 Dec 22, 2010 Jkt 220212 PO 00000 Frm 00063 Fmt 8010 Sfmt 8010 Y:SGML220212.XXX 220212jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-54 49 CFR Subtitle A (10110 Edition) 6.1 AUTHORITY: 5 U.S.C. 504; 28 U.S.C

15、. 2412. SOURCE: 48 FR 1070, Jan. 10, 1983, unless otherwise noted. Subpart AGeneral Provisions 6.1 Purpose of these rules. The Equal Access to Justice Act, 5 U.S.C. 504 (called the Act in this part), provides for the award of attor-ney fees and other expenses to eligible individuals and entities who

16、 are parties to certain administrative proceedings (called adversary adjudications) be-fore government agencies, such as the Department of Transportation or any of its operating administrations. The rules in this part describe the parties eligible for awards and the proceedings that are covered. The

17、y also explain how to apply for awards, and the proce-dures and standards that this agency will use to make them. The use of the term Department, in this rule, will be understood to mean the Department of Transportation or any of its oper-ating administrations, unless other-wise specified. The term

18、agency coun-sel will be understood to mean coun-sel for the Department of Transpor-tation or any of its operating adminis-trations. 48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19233, Apr. 21, 1997 6.3 Applicability. Section 6.9(a) applies to any adver-sary adjudication pending before the Departme

19、nt on or after October 1, 1981. In addition, applicants for awards must also meet the standards of 6.9(b) for any adversary adjudication commenced on or after March 29, 1996. 62 FR 19233, Apr. 21, 1997 6.5 Proceedings covered. (a) The Act applies to adversary adju-dications conducted by the Departme

20、nt of Transportation. These are adjudica-tions under 5 U.S.C. 554 in which the position of the Department is rep-resented by an attorney or other rep-resentative who enters an appearance and participates in the proceeding. Coverage of the Act begins at designa-tion of a proceeding or issuance of a c

21、harge sheet. Any proceeding in which the Department may prescribe or es-tablish a lawful present or future rate is not 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 ad

22、ju-dications. For the Department of Transportation, the types of pro-ceedings covered include, but may not be limited to: Coast Guard suspension or revocation of licenses, certificates or documents under 46 U.S.C. 7701 et seq.; Coast Guard class II civil penalty proceedings under the Clean Water Act

23、, 33 U.S.C. 1321(b)(6)(B)(ii); Coast Guard class II penalty proceedings under the Comprehensive Environmental Re-sponse, Compensation and Liability Act, 42 U.S.C. 9609(b); suspension and revocation of Certificates of Registry proceedings for Great Lakes Pilots pur-suant to 46 CFR Part 401; National

24、Highway Traffic Safety Administration (NHTSA) automotive fuel economy en-forcement under 49 U.S.C. Chapter 329 (49 CFR Part 511); Federal Highway Ad-ministration (FHWA) enforcement of motor carrier safety regulations under 49 U.S.C. 521 and 5123 (49 CFR 386); the Departments aviation economic en-for

25、cement proceedings conducted by its Office of Aviation Enforcement and Proceedings pursuant to 49 U.S.C. Sub-title VII, 14 CFR Chapter II. Also cov-ered are any appeal of a decision made pursuant to section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) be-fore an agency board of contract ap

26、-peals as provided in section 8 of that Act (41 U.S.C. 607), any hearing con-ducted under Chapter 38 of title 31, and the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq. (b) If a proceeding includes both mat-ters covered by the Act and matters specifically excluded from coverage,

27、 any award made will include only fees and expenses related to covered issues. 48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19233, Apr. 21, 1997 6.7 Eligibility of applications. (a) To be eligible for an award of at-torney fees and other expenses under the Act, the applicant must be a party to an

28、adversary adjudication for which it seeks an award. The term party is defined in 5 U.S.C. 504(b)(1)(B). The ap-plicant must show that it meets all VerDate Mar2010 10:00 Dec 22, 2010 Jkt 220212 PO 00000 Frm 00064 Fmt 8010 Sfmt 8010 Y:SGML220212.XXX 220212jdjones on DSK8KYBLC1PROD with CFRProvided by

29、IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-55 Office of the Secretary of Transportation 6.9 conditions of eligibility set out in this subpart and in paragraph (b) of this section. (b) The types of eligible applicants are as follows: (1) An individual with a

30、 net worth of not more than $2 million; (2) The sole owner of an unincor-porated business who has a net worth of not more than $7 million, including both personal and business interests, and not more than 500 employees. (3) A charitable or other tax-exempt organization as described in section 501(c)

31、(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3) with not more than 500 employees; (4) A cooperative association as de-fined in section 15(a) of the Agricul-tural Marketing Act (12 U.S.C. 1141j(a) with a net worth of not more than $5 million and not more than 500 employ-ees. (5) Any other partn

32、ership, corpora-tion, association, or public or private organization with a net worth of not more than $7 million and not more than 500 employees. (6) For the purposes of 6.9(b), eligi-ble applicants include small entities as defined in 5 U.S.C. 601. (c) For the purpose of eligibility, the net worth

33、 and number of employees of an applicant shall be determined as of the date the proceeding was des-ignated. (d) An applicant who owns an unin-corporated business will be considered an individual rather than a sole owner of an unincorporated business if the issues on which the applicant prevails are

34、related primarily to per-sonal interests rather than to business interests. (e) The number of employees of an applicant includes all persons who reg-ularly perform services for remunera-tion for the applicant, under the appli-cants direction and control. Part-time employees shall be included on a pr

35、o-portional basis. (f) 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 owns a major-ity of the voting shares or other inter-est of the

36、 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 administrative law judge deter-mines that such treatment would be un

37、just and contrary to the purposes of the Act in light of the actual relation-ship between the affiliated entities. In addition, the administrative law judge may determine that financial relation-ships of the applicant other than those described in this paragraph constitute special circumstances that

38、 would make an award unjust. (g) 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. (h) An applicant who appears pro se in a proceeding is ineligible for award of attorney fees. How

39、ever, eligibility for other expenses is not affected by pro se representation. 48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997 6.9 Standards for awards. (a) An eligible applicant may receive an award for fees and expenses incurred by that party in connection with a de-cision in f

40、avor of the applicant in a proceeding covered by this Part, unless the position of the Department over which the applicant has prevailed was substantially justified or special cir-cumstances make the award sought un-just. The burden of proof that an award should not be made to an eligible appli-cant

41、 is on the Department where it has initiated the proceeding. No presump-tion arises that the Departments posi-tion was not substantially justified simply because the Department did not prevail. Whether or not the position of the Department was substantially jus-tified shall be determined on the basi

42、s of the administrative record, as a whole, in the adversary adjudication for which fees and other expenses are sought. The position of the Depart-ment means, in addition to the posi-tion taken by the agency in the adver-sary adjudication, the action or failure to act by the Department upon which th

43、e adversary adjudication may be based. VerDate Mar2010 10:00 Dec 22, 2010 Jkt 220212 PO 00000 Frm 00065 Fmt 8010 Sfmt 8010 Y:SGML220212.XXX 220212jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-56 49 CFR Subtitle A (

44、10110 Edition) 6.11 (b) In the context of a Departmental proceeding to enforce a partys compli-ance with a statutory or regulatory re-quirement, if the demand by the De-partment is substantially in excess of the amount awarded to the government pursuant to the decision of the adju-dicative officer a

45、nd is unreasonable when compared with such decision, under the facts and circumstances of the case, the adjudicative officer shall award to an eligible applicant party the fees and expenses related to defend-ing against the excessive demand, un-less the applicant party has committed a willful violat

46、ion of law or otherwise acted in bad faith, or special cir-cumstances make an award unjust. Fees and expenses awarded under this paragraph shall be paid only as a con-sequence of appropriations provided in advance. As used in this section, de-mand means the express demand of the Department which led

47、 to the adver-sary adjudication, but does not include a recitation by the Department of the maximum statutory penalty (i) In the administrative complaint, or (ii) Elsewhere when accompanied by an express demand for a lesser amount. (c) The decision of the Department on the application for fees and o

48、ther expenses shall be the final administra-tive decision under this section. (d) An award will be reduced or de-nied if the applicant has unduly or un-reasonably protracted the proceeding. 62 FR 19234, Apr. 21, 1997 6.11 Allowable fees and expenses. (a) Awards will be based on rates cus-tomarily ch

49、arged by persons engaged in the business of acting as attorneys, agents or expert witnesses. (b) No award for the fee of an attor-ney or agent under these rules may ex-ceed $125.00 per hour. This amount shall include all other expenses in-curred by the attorney or agent in con-nection with the case. No award to compensate an expert witness may ex-ceed the highest market rate at which the Department pays ex