[Federal Register Volume 59, Number 113 (Tuesday, June 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14339]


[[Page Unknown]]

[Federal Register: June 14, 1994]


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NATIONAL TRANSPORTATION SAFETY BOARD

49 CFR Part 826

 

Equal Access To Justice Act Fees

AGENCY: National Transportation Safety Board.

ACTION: Final rules.

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SUMMARY: The NTSB is adopting various housekeeping amendments to its 
Equal Access to Justice Act (EAJA) rules to reflect current law and 
practice.

DATES: The new rules will be effective on June 14, 1994.

FOR FURTHER INFORMATION CONTACT: Jane F. Mackall, (202) 382-1952.

SUPPLEMENTARY INFORMATION: The Board hereby adopts five editorial 
amendments to its rules at 49 CFR 826, each of which is explained 
below. Because these amendments are intended to make no changes but are 
intended only to reflect current law and practice; they are being made 
effective without notice and comment.
    1. Section 826.2 is amended to remove outdated information that was 
responsive to the 1981 extension of EAJA and is no longer relevant.
    2. By notice published in the Federal Register on April 22, 1992, 
the Board increased its cap on attorney fees contained at 49 CFR 
826.6(b). We adopted a formula tied to the Consumer Price Index, All 
Urban Consumers, U.S. City Average, All Items, unless a more specific 
geographic index is published for the locality. This ``CPI'' is the 
generally understood ``cost of living'' index that is widely used as a 
price inflator in labor and contract matters. The rule contained U.S. 
City figures through 1992. Our amendment here adds the 1993 figure.
    3. In 1985, EAJA was amended (Pub. L. No. 99-80) to reduce 
limitations on its application. The $1 million/$5 million net worth 
limits for individuals and businesses, respectively, contained in Title 
5 U.S.C. 504(b) (1) were increased to $2 million/$7 million caps. We 
amended our rules at Sec. 826.4(b) (1) and (2) to reflect this change, 
but failed to make a similar modification to Sec. 826.21(b). We do so 
here, reflecting current law.1
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    \1\Lloyd Ericcson has petitioned for this change, which petition 
we here grant.
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    4. We take this opportunity to codify our ruling in Administrator 
v. Holloway, NTSB Order EA-4155 (served May 3, 1994), by amending 
Sec. 826.24 to indicate that the Board is without authority to grant 
extensions to file EAJA applications.
    5. Lastly, we amend Sec. 826.31 to provide that our rules of 
practice in part 821 apply to EAJA proceedings, to the extent not 
inconsistent with other, more specific rules in part 826.
    As required by the Regulatory Flexibility Act, we certify that the 
adopted rules will not have a substantial impact on a significant 
number of small entities. What effect they may have, however, would be 
beneficial to small entities by clarifying our procedures. The rules 
are not major rules for the purposes of Executive Order 12291. We also 
conclude that this action will not significantly affect either the 
quality of the human environment or the conservation of energy 
resources, nor will this action impose any information collection 
requirements requiring approval under the Paperwork Reduction Act.

List of Subjects in 49 CFR Part 826

    Claims, Equal access to justice, Lawyers.

    Accordingly, 49 CFR part 826 is amended as set forth below.

PART 826--RULES IMPLEMENTING THE EQUAL ACCESS TO JUSTICE ACT OF 
1980

    1. The authority citation for part 826 continues to read as 
follows:

    Authority: Section 203(a)(1) P. L. 99-80, 99 Stat. 186 (5 U.S.C. 
504).

    2. Section 826.2 is revised to read as follows:


Sec. 826.2  When the Act applies.

    The Act applies to any adversary adjudication identified in 
Sec. 826.3 as covered under the Act.
    3. Section 826.6 is amended by revising paragraph (b)(1) to read as 
follows:


Sec. 826.6  Allowable fees and expenses.

* * * * *
    (b)(1) No award for the fee of an attorney or agent under these 
rules may exceed $75 indexed as follows:


TR14JN94.001

The CPI to be used is the annual average CPI, All Urban Consumers, U.S. 
City Average, All Items, except where a local, All Item index is 
available. Where a local index is available, but results in a manifest 
inequity vis-a-vis the U.S. City Average, the U.S. City Average may be 
used. The numerator of that equation is the yearly average for the 
year(s) the services were provided, with each year calculated 
separately. If an annual average CPI for a particular year is not yet 
available, the prior year's annual average CPI shall be used. This 
formula increases the $75 statutory cap by indexing it to reflect cost 
of living increases, as authorized in 5 U.S.C. 504(b)(1)(A)(ii). 
Application of these increased rate caps requires affirmative findings 
under Sec. 821.6(c) of this chapter. For ease of application, available 
U.S. City figures are reproduced as follows:


1981.........................................................       90.9
1982.........................................................       96.5
1983.........................................................       99.6
1984.........................................................      103.9
1985.........................................................      107.6
1986.........................................................      109.6
1987.........................................................      113.6
1988.........................................................      118.3
1989.........................................................      124.0
1990.........................................................      130.7
1991.........................................................      136.2
1992.........................................................      140.3
1993.........................................................     144.5 
                                                                        

* * * * *
    4. Section 826.21 is amended by revising paragraph (b) introductory 
text to read as follows:


Sec. 826.21  Contents of application.

* * * * *
    (b) The application shall also include a statement that the 
applicant's net worth does not exceed $2 million (if an individual) or 
$7 million (for all other applicants, including their affiliates). 
However, an applicant may omit this statement if:
* * * * *
    5. Section 826.24 is amended by revising paragraph (a) to read as 
follows:


Sec. 826.24  When an application may be filed.

    (a) An application may be filed whenever the applicant has 
prevailed in the proceeding, but in no case no later than the 30 days 
after the Board's final disposition of the proceeding. This 30-day 
deadline is statutory and the Board has no authority to extend it.
* * * * *
    6. Section 826.31 is revised to read as follows:


Sec. 826.31  Filing and service of documents and general procedures.

    The rules contained in 49 CFR part 821 apply to proceedings under 
the Act, unless they are superseded by or are inconsistent with a 
provision of this part.

    Issued in Washington, DC on this 8th day of June, 1994.
Carl W. Vogt,
Chairman.
[FR Doc. 94-14339 Filed 6-13-94; 8:45 am]
BILLING CODE 7533-01-P