Implementation of Equal Access to Justice Act in Agency Proceedings

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 6

[Docket No. OST-96-1421]

RIN 2105-AB73

Implementation of Equal Access to Justice Act in Agency

Proceedings

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule.

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SUMMARY: The Department of Transportation is updating its regulation

concerning the Equal Access to Justice Act to reflect current statutory

requirements. The change is made on the Department's initiative in

response to the President's Regulatory Reinvention Initiative.

DATES: This rule is effective May 21, 1997.

FOR FURTHER INFORMATION CONTACT: Alexander J. Millard, Office of the

General Counsel, U.S. Department of Transportation, 400 Seventh Street,

SW., Room 4102, Washington, DC 20590, telephone (202) 366-9285, or S.

Reid Alsop, Office of the Chief Counsel, Federal Highway

Administration, U.S. Department of Transportation, 400 Seventh Street,

SW., Room 4230, Washington, DC 20590, telephone (202) 366-1371.

SUPPLEMENTARY INFORMATION: On June 6, 1996, the Department published a

notice of proposed rulemaking (NPRM) in the Federal Register (at 61 FR

28831) proposing to update its regulation (49 CFR part 6) providing for

the award of attorney fees and other expenses under the Equal Access to

Justice Act to eligible individuals and entities who are parties to

certain administrative proceedings before the Department and its

various operating administrations. No comments were filed in response

to this NPRM. The Department is, therefore, adopting the proposal with

only minor editorial corrections in Sec. 6.5.

Regulatory Analyses and Notices

This final rule is considered to be a non-significant rulemaking

under DOT's regulatory policies and procedures, 44 FR 11034. The final

rule was not subject to review by the Office of Information and

Regulatory Affairs pursuant to Executive Order 12866.

The impact of this rule is so minimal that no further regulatory

evaluation has been prepared. Indeed, the changes that are being made

merely track various statutory changes that have been enacted since the

Department's adoption of its original final rule in 1983.

The final rule has been analyzed in accordance with the principles

and criteria contained in Executive Order 12612, and it has been

determined that it does not have sufficient federalism implications to

warrant the preparation of a Federalism Assessment. I certify that this

rule will not have a significant economic impact on a substantial

number of small entities. This rule is merely updating the regulation

to reflect current statutory requirements. Finally, the rule will not

result in any unfunded mandate to state, local or tribal governments in

the aggregate, or to the private sector, of $100 million or more in any

one year.

List of Subjects in 49 CFR Part 6

Claims, Equal access to justice, Transportation Department.

For the reasons discussed in the preamble, 49 CFR part 6 is hereby

amended to read as follows:

PART 6--IMPLEMENTATION OF EQUAL ACCESS TO JUSTICE ACT IN AGENCY

PROCEEDINGS

1. The authority citation for part 6 is revised to read as follows:

Authority: 5 U.S.C. 504; 28 U.S.C. 2412.

Sec. 6.1 [Amended]

2. Section 6.1 is amended by removing the second sentence.

3. Section 6.3 is revised to read as follows:

Sec. 6.3 Applicability.

Section 6.9(a) applies to any adversary adjudication pending before

the Department on or after October 1, 1981. In addition, applicants for

awards must also meet the standards of Sec. 6.9(b) for any adversary

adjudication commenced on or after March 29, 1996.

4. In Sec. 6.5, paragraph (a) is revised to read as follows:

Sec. 6.5 Proceedings covered.

(a) The Act applies to adversary adjudications conducted by the

Department of Transportation. These are adjudications under 5 U.S.C.

554 in which the position of the Department is represented by an

attorney or other representative who enters an appearance and

participates in the proceeding. Coverage of the Act begins at

designation of a proceeding or issuance of a charge sheet. Any

proceeding in which the Department may prescribe or establish a lawful

present or future rate is not covered by the Act. Proceedings to grant

or renew licenses are also excluded, but proceedings to modify,

suspend, or revoke licenses are covered if they are otherwise

``adversary adjudications.'' For the Department of Transportation, the

types of proceedings 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

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under the Clean Water Act, 33 U.S.C. 1321(b)(6)(B)(ii); Coast Guard

class II penalty proceedings under the Comprehensive Environmental

Response, Compensation and Liability Act, 42 U.S.C. 9609(b); suspension

and revocation of Certificates of Registry proceedings for Great Lakes

Pilots pursuant to 46 CFR Part 401; National Highway Traffic Safety

Administration (NHTSA) automotive fuel economy enforcement under 49

U.S.C. Chapter 329 (49 CFR Part 511); Federal Highway Administration

(FHWA) enforcement of motor carrier safety regulations under 49 U.S.C.

521 and 5123 (49 CFR 386); the Department's aviation economic

enforcement proceedings conducted by its Office of Aviation Enforcement

and Proceedings pursuant to 49 U.S.C. Subtitle VII, 14 CFR Chapter II.

Also covered are any appeal of a decision made pursuant to section 6 of

the Contract Disputes Act of 1978 (41 U.S.C. 605) before an agency

board of contract appeals as provided in section 8 of that Act (41

U.S.C. 607), any hearing conducted under Chapter 38 of title 31, and

the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq.

* * * * *

5. In Sec. 6.7, paragraph (a) is amended by removing the citation

``5 U.S.C. 551(3)'' and adding the citation ``5 U.S.C. 504(b)(1)(B)'';

paragraph (b)(1) is amended by removing the words ``1 million'' and

adding the words ``2 million''; paragraphs (b)(2) and (b)(5) are

amended by removing the words ``5 million'' and adding the words ``7

million''; and paragraph (b)(6) is added to read as follows:

Sec. 6.7 Eligibility of applications.

* * * * *

(b)(6) For the purposes of Sec. 6.9(b), eligible applicants include

small entities as defined in 5 U.S.C. 601.

* * * * *

6. In Sec. 6.9, paragraphs (a) and (b) are revised and paragraphs

(c) and (d) are added to read as follows:

Sec. 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 decision in favor

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 circumstances make the award sought

unjust. The burden of proof that an award should not be made to an

eligible applicant is on the Department where it has initiated the

proceeding. No presumption arises that the Department's position was

not substantially justified simply because the Department did not

prevail. Whether or not the position of the Department was

substantially justified shall be determined on the basis of the

administrative record, as a whole, in the adversary adjudication for

which fees and other expenses are sought. The ``position of the

Department'' means, in addition to the position taken by the agency in

the adversary adjudication, the action or failure to act by the

Department upon which the adversary adjudication may be based.

(b) In the context of a Departmental proceeding to enforce a

party's compliance with a statutory or regulatory requirement, if the

demand by the Department is substantially in excess of the amount

awarded to the government pursuant to the decision of the adjudicative

officer and 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

defending against the excessive demand, unless the applicant party has

committed a willful violation of law or otherwise acted in bad faith,

or special circumstances make an award unjust. Fees and expenses

awarded under this paragraph shall be paid only as a consequence of

appropriations provided in advance. As used in this section, ``demand''

means the express demand of the Department which led to the adversary

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

other expenses shall be the final administrative decision under this

section.

(d) An award will be reduced or denied if the applicant has unduly

or unreasonably protracted the proceeding.

Sec. 6.11 [Amended]

7. In Sec. 6.11, paragraph (b) is amended by removing the figure

``$75.00'' and adding the figure ``$125.00''.

Sec. 6.25 [Amended]

8. In Sec. 6.25, paragraph (c) is amended by removing the words

``an identify'' and adding words ``and identify''.

Issued this 24th day of March 1997 at Washington, DC.

Rodney E. Slater,

Secretary of Transportation.

[FR Doc. 97-10192 Filed 4-18-97; 8:45 am]

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