[Federal Register Volume 62, Number 76 (Monday, April 21, 1997)]
[Rules and Regulations]
[Pages 19233-19234]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10192]


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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

[[Page 19234]]

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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