[Federal Register Volume 71, Number 26 (Wednesday, February 8, 2006)]
[Rules and Regulations]
[Pages 6364-6370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1146]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 4

RIN 1094-AA49


Implementation of the Equal Access to Justice Act in Agency 
Proceedings

AGENCY: Office of the Secretary, Interior.

ACTION: Final rule.

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SUMMARY: The Office of Hearings and Appeals (OHA) is amending its 
regulations that implement the Equal Access to Justice Act to bring 
them up to date with amendments to the statute that have been enacted 
since 1983.

DATES: Effective Date: February 8, 2006.

FOR FURTHER INFORMATION CONTACT: Will A. Irwin, Administrative Judge, 
Interior Board of Land Appeals, U.S. Department of the Interior, 801 N. 
Quincy Street, Suite 300, Arlington, Virginia 22203, Phone 703-235-
3750. Persons who use a telecommunications device for the deaf (TDD) 
may call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    OHA published a proposed rule on October 5, 2005, to update its 
regulations that implement the Equal Access to Justice Act (EAJA), 5 
U.S.C. 504 (2000). 70 FR 58167-58175 (October 5, 2005). Those 
regulations were first promulgated in 1983. 48 FR 17596 (April 25, 
1983). A section-by-section analysis of the proposed regulations was 
provided. 70 FR 58168-58170 (October 5, 2005).
    We received one comment on the proposed rule, from Hobbs, Straus, 
Dean & Walker, LLP, on behalf of client Indian tribes and 
organizations. It ``applaud[ed]'' the proposed changes and recommended 
that they be made applicable to cases pending before OHA on the date 
the regulations become effective. We accept this suggestion. Although 
we proposed to omit section 4.604 (``Applicability to Department of the 
Interior proceedings'') of the 1983 regulations because it is no longer 
needed, 70 FR 58169 (October 5, 2005), we did not intend that the 1983 
regulations would apply to cases pending when the new regulations 
became effective. We have added paragraph (b) to section 4.601 of the 
regulations to make our intention explicit that, when the new 
regulations become effective, they will apply to any EAJA application 
pending then or filed subsequently.

[[Page 6365]]

    We explained in the proposed rule that we had omitted any reference 
to fees for ``agents'' in section 4.606 because the Department does not 
authorize specialized non-attorney practitioners to practice before it. 
70 FR 58169 (October 5, 2005). We have added a new paragraph (a) to 
section 4.606 to specify that an award is limited to the fees and 
expenses of attorneys and expert witnesses.
    The regulations are otherwise adopted as proposed.

II. Procedural Requirements

A. Decision To Make the Rule Effective Upon Publication

    The Department has determined that this rule should be effective 
upon publication because it relieves restrictions in OHA's regulations 
that are inconsistent with current provisions of EAJA and because good 
cause exists to make the revised regulations immediately available to 
parties in pending cases. 5 U.S.C. 553(d)(1), (3). Delaying the 
effective date by 30 days, as normally required by 5 U.S.C. 553(d), 
would mean that current applicants for an award of attorney fees and 
expenses under EAJA might be subject to these inconsistent 
restrictions, e.g., in the types of proceedings covered or in the 
maximum rate payable.

B. Regulatory Planning and Review (E.O. 12688)

    In accordance with the criteria in Executive Order 12866, the 
Office of Management and Budget (OMB) has determined that this is not a 
significant rule. OMB has not reviewed the rule under Executive Order 
12866.
    1. This rule will not have an annual economic effect of $100 
million or more or adversely affect in a material way an economic 
sector, productivity, competition, jobs, the environment, public health 
or safety, or State, local, or tribal governments or communities. A 
cost-benefit and economic analysis is not required. These amended 
regulations will have virtually no effect on the economy because they 
merely implement amendments to EAJA that are already in effect.
    2. This rule will not create inconsistencies with or interfere with 
other agencies' actions, since all agencies are subject to EAJA and its 
amendments.
    3. This rule will not materially alter the budgetary effects of 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients. These regulations have to do only with 
the procedures implementing EAJA, not with entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients.
    4. This rule does not raise novel legal or policy issues. The 
regulations will merely implement amendments to EAJA that are already 
in effect.

C. Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.). The regulations merely implement amendments to EAJA that are 
already in effect. A Small Entity Compliance Guide is not required.

D. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    1. Will not have an annual effect on the economy of $100 million or 
more. The regulations merely implement amendments to EAJA that are 
already in effect. They should have no effect on the economy.
    2. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, state, or local government 
agencies, or geographic regions. Updating OHA's procedural regulations 
implementing EAJA, based on amendments to that Act, will not affect 
costs or prices for citizens, individual industries, or government 
agencies.
    3. Will not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. 
Updating OHA's procedural regulations implementing EAJA, based on 
amendments to that Act, should have no effects, adverse or beneficial, 
on competition, employment, investment, productivity, innovation, or 
the ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

E. Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we find that:
    1. This rule will not have a significant or unique effect on state, 
local, or tribal governments or the private sector. Updating OHA's 
procedural regulations implementing EAJA, based on amendments to that 
Act, will neither uniquely nor significantly affect these governments.
    2. This rule will not produce an unfunded Federal mandate of $100 
million or more on state, local, or tribal governments, in the 
aggregate, or the private sector in any year, i.e., it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. A statement containing the information required by the Unfunded 
Mandates Reform Act, 2 U.S.C. 1532 is not required.

F. Takings (E.O. 12630)

    In accordance with Executive Order 12630, we find that the rule 
will not have significant takings implications. A takings implication 
assessment is not required. Updating OHA's procedural regulations 
implementing EAJA, based on amendments to that Act, should have no 
effect on property rights.

G. Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we find that the rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment. There is no foreseeable effect 
on states from updating OHA's procedural regulations implementing EAJA, 
based on amendments to that Act. A Federalism Assessment is not 
required.

H. Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule will not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. Because these regulations will merely implement 
amendments to EAJA that are already in effect, they will not burden 
either administrative or judicial tribunals.

I. Paperwork Reduction Act

    This rule will not require an information collection from 10 or 
more parties, and a submission under the Paperwork Reduction Act is not 
required. An OMB form 83-I has not been prepared and has not been 
approved by the Office of Policy Analysis. The rule is an 
administrative and procedural rule that simply updates existing 
procedural regulations implementing EAJA, based on amendments to that 
Act.

J. National Environmental Policy Act

    The Department has analyzed this rule in accordance with the 
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et 
seq., Council on Environmental Quality (CEQ) regulations, 40 CFR part 
1500, and the Department of the Interior Departmental Manual (DM). CEQ 
regulations, at 40 CFR 1508.4, define a ``categorical exclusion'' as a 
category of actions that

[[Page 6366]]

do not individually or cumulatively have a significant effect on the 
human environment. The regulations further direct each department to 
adopt NEPA procedures, including categorical exclusions. 40 CFR 1507.3. 
The Department has determined that this rule is categorically excluded 
from further environmental analysis under NEPA in accordance with 516 
DM 2, Appendix 1, which categorically excludes ``[p]olicies, 
directives, regulations, and guidelines that are of an administrative, 
financial, legal, technical, or procedural nature * * *.'' In addition, 
the Department has determined that none of the extraordinary 
circumstances listed in 516 DM 2, Appendix 2, applies to the rule. The 
rule is an administrative and procedural rule that simply updates 
existing procedural regulations implementing EAJA, based on amendments 
to that Act. Therefore, neither an environmental assessment nor an 
environmental impact statement under NEPA is required.

K. Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, the Department 
of the Interior has evaluated potential effects of these regulations on 
Federally recognized Indian tribes and has determined that there are no 
potential effects. These regulations will not affect Indian trust 
resources; they will merely implement amendments to EAJA that are 
already in effect.

L. Effects on the Nation's Energy Supply (E.O. 13211)

    In accordance with Executive Order 13211, we find that this 
regulation does not have a significant effect on the nation's energy 
supply, distribution, or use. Updating OHA's procedural regulations 
implementing EAJA, based on amendments to that Act, will not affect 
energy supply or consumption.

List of Subjects in 43 CFR Part 4

    Administrative practice and procedure; Claims; Equal access to 
justice.

    Dated: February 1, 2006.
R. Thomas Weimer,
Assistant Secretary--Policy, Management and Budget.

0
For the reasons set forth in the preamble, part 4, subpart F, of title 
43 of the Code of Federal Regulations is revised as set forth below:

PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES

Subpart F--Implementation of the Equal Access to Justice Act in 
Agency Proceedings

General Provisions

Sec.
4.601 What is the purpose of this subpart?
4.602 What definitions apply to this subpart?
4.603 What proceedings are covered by this subpart?
4.604 When am I eligible for an award?
4.605 Under what circumstances may I receive an award?
4.606 What fees and expenses may be allowed?

Information Required from Applicants

4.610 What information must my application for an award contain?
4.611 What information must I include in my net worth exhibit?
4.612 What documentation of fees and expenses must I provide?
4.613 When may I file an application for an award?

Procedures for Considering Applications

4.620 How must I file and serve documents?
4.621 When may the Department or other agency file an answer?
4.622 When may I file a reply?
4.623 When may other parties file comments?
4.624 When may further proceedings be held?
4.625 How will my application be decided?
4.626 How will my appeal from a decision be handled?
4.627 May I seek judicial review of a final decision?
4.628 How will I obtain payment of an award?

    Authority: 5 U.S.C. 504(c)(1).

General Provisions


Sec.  4.601  What is the purpose of this subpart?

    (a) The Equal Access to Justice Act provides for the award of 
attorney fees and other expenses to eligible individuals and entities 
who are parties to certain administrative proceedings (called 
``adversary adjudications'') before the Department of the Interior. 
Under the Act, an eligible party may receive an award when it prevails 
over the Department or other agency, unless the position of the 
Department or other agency was substantially justified or special 
circumstances make an award unjust. The regulations in this subpart 
describe the parties eligible for awards and the proceedings that are 
covered. They also explain how to apply for awards, and the procedures 
and standards that the Office of Hearings and Appeals will use in 
ruling on those applications.
    (b) The regulations in this subpart apply to any application for an 
award of attorney fees and other expenses that is:
    (1) Pending on February 8, 2006; or
    (2) Filed on or after February 8, 2006.


Sec.  4.602  What definitions apply to this subpart?

    As used in this subpart:
    Act means section 203(a)(1) of the Equal Access to Justice Act, 
Public Law 96-481, 5 U.S.C. 504, as amended.
    Adjudicative officer means the deciding official(s) who presided at 
the adversary adjudication, or any successor official(s) assigned to 
decide the application.
    Adversary adjudication means any of the following:
    (1) An adjudication under 5 U.S.C. 554 in which the position of the 
Department or other agency is presented by an attorney or other 
representative who enters an appearance and participates in the 
proceeding;
    (2) An appeal of a decision of a contracting officer made pursuant 
to section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) 
before the Interior Board of Contract Appeals pursuant to section 8 of 
that Act (41 U.S.C. 607);
    (3) Any hearing conducted under section 6103(a) of the Program 
Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.); or
    (4) Any hearing or appeal involving the Religious Freedom 
Restoration Act of 1993 (42 U.S.C. 2000bb et seq.).
    Affiliate means:
    (1) Any individual, corporation, or other entity that directly or 
indirectly controls or owns a majority of the voting shares or other 
interest of the applicant; or
    (2) Any corporation or other entity of which the applicant directly 
or indirectly owns or controls a majority of the voting shares or other 
interest.
    Demand means the express demand of the Department or other agency 
that led to the adversary adjudication, but does not include a 
recitation by the Department or other agency of the maximum statutory 
penalty:
    (1) In the administrative complaint; or
    (2) Elsewhere when accompanied by an express demand for a lesser 
amount.
    Department means the Department of the Interior or the component of 
the Department that is a party to the adversary adjudication (e.g., 
Bureau of Land Management).
    Final disposition means the date on which either of the following 
becomes final and unappealable, both within the Department and to the 
courts:
    (1) A decision or order disposing of the merits of the proceeding; 
or

[[Page 6367]]

    (2) Any other complete resolution of the proceeding, such as a 
settlement or voluntary dismissal.
    Other agency means any agency of the United States or the component 
of the agency that is a party to the adversary adjudication before the 
Office of Hearings and Appeals, other than the Department of the 
Interior and its components.
    Party means a party as defined in 5 U.S.C. 551(3).
    Position of the Department or other agency means:
    (1) The position taken by the Department or other agency in the 
adversary adjudication; and
    (2) The action or failure to act by the Department or other agency 
upon which the adversary adjudication is based.
    Proceeding means an adversary adjudication as defined in this 
section.
    You means a party to an adversary adjudication.


Sec.  4.603  What proceedings are covered by this subpart?

    (a) The Act applies to adversary adjudications conducted by the 
Office of Hearings and Appeals, including proceedings to modify, 
suspend, or revoke licenses if they are otherwise adversary 
adjudications.
    (b) The Act does not apply to:
    (1) Other hearings and appeals conducted by the Office of Hearings 
and Appeals, even if the Department uses procedures comparable to those 
in 5 U.S.C. 554 in such cases;
    (2) Any proceeding in which the Department or other agency may 
prescribe a lawful present or future rate; or
    (3) Proceedings to grant or renew licenses.
    (c) If a hearing or appeal includes both matters covered by the Act 
and matters excluded from coverage, any award made will include only 
fees and expenses related to covered issues.


Sec.  4.604  When am I eligible for an award?

    (a) To be eligible for an award of attorney fees and other expenses 
under the Act, you must:
    (1) Be a party to the adversary adjudication for which you seek an 
award; and
    (2) Show that you meet all conditions of eligibility in this 
section.
    (b) You are an eligible applicant if you are any of the following:
    (1) An individual with a net worth of $2 million or less;
    (2) The sole owner of an unincorporated business who has a net 
worth of $7 million or less, including both personal and business 
interests, and 500 or fewer employees;
    (3) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with 500 or fewer employees;
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with 500 or fewer 
employees;
    (5) Any other partnership, corporation, association, unit of local 
government, or organization with a net worth of $7 million or less and 
500 or fewer employees; or
    (6) For purposes of Sec.  4.605(c), a small entity as defined in 5 
U.S.C. 601(6).
    (c) For the purpose of eligibility, your net worth and the number 
of your employees must be determined as of the date the proceeding was 
initiated.
    (1) Your employees include all persons who regularly perform 
services for remuneration under your direction and control.
    (2) Part-time employees must be included on a proportional basis.
    (d) You are considered an ``individual'' rather than a ``sole owner 
of an unincorporated business'' if:
    (1) You own an unincorporated business; and
    (2) The issues on which you prevail are related primarily to 
personal interests rather than to business interests.
    (e) To determine your eligibility, your net worth and the number of 
your employees must be aggregated with the net worth and the number of 
employees of all of your affiliates. However, this paragraph does not 
apply if the adjudicative officer determines that aggregation would be 
unjust and contrary to the purposes of the Act in light of the actual 
relationship between the affiliated entities.
    (f) The adjudicative officer may determine that financial 
relationships other than those described in the definition of 
``affiliate'' in Sec.  4.602 constitute special circumstances that 
would make an award unjust.
    (g) If you participate in a proceeding primarily on behalf of one 
or more other persons or entities that would be ineligible, you are not 
eligible for an award.


Sec.  4.605  Under what circumstances may I receive an award?

    (a) You may receive an award for your fees and expenses in 
connection with a proceeding if:
    (1) You prevailed in the proceeding or in a significant and 
discrete substantive portion of a proceeding; and
    (2) The position of the Department or other agency over which you 
prevailed was not substantially justified. The Department or other 
agency has the burden of proving that its position was substantially 
justified.
    (b) An award will be reduced or denied if you have unduly or 
unreasonably protracted the proceeding or if special circumstances make 
the award sought unjust.
    (c) This paragraph applies to an adversary adjudication arising 
from an action by the Department or other agency to enforce compliance 
with a statutory or regulatory requirement:
    (1) If the demand of the Department or other agency in the action 
is excessive and unreasonable compared with the adjudicative officer's 
decision, then the adjudicative officer must award you your fees and 
expenses related to defending against the excessive demand, unless:
    (i) You have committed a willful violation of law;
    (ii) You have acted in bad faith; or
    (iii) Special circumstances make an award unjust.
    (2) Fees and expenses awarded under this paragraph will be paid 
only if appropriations to cover the payment have been provided in 
advance.


Sec.  4.606  What fees and expenses may be allowed?

    (a) If the criteria in Sec. Sec.  4.603 through 4.605 are met, you 
may receive an award under this subpart only for the fees and expenses 
of your attorney(s) and expert witness(es).
    (b) The adjudicative officer must base an award on rates 
customarily charged by persons engaged in the business of acting as 
attorneys and expert witnesses, even if the services were made 
available to you without charge or at a reduced rate.
    (1) The maximum that can be awarded for the fee of an attorney is 
$125 per hour.
    (2) The maximum that can be awarded for the fee of an expert 
witness is the highest rate at which the Department or other agency 
pays expert witnesses with similar expertise.
    (3) An award may also include the reasonable expenses of the 
attorney or expert witness as a separate item, if the attorney or 
expert witness ordinarily charges clients separately for those 
expenses.
    (c) The adjudicative officer may award only reasonable fees and 
expenses under this subpart. In determining the reasonableness of the 
fee for an attorney or expert witness, the adjudicative officer must 
consider the following:
    (1) If the attorney or expert witness is in private practice, his 
or her customary fee for similar services;

[[Page 6368]]

    (2) If the attorney or expert witness is your employee, the fully 
allocated cost of the services;
    (3) The prevailing rate for similar services in the community in 
which the attorney or expert witness ordinarily performs services;
    (4) The time actually spent in representing you in the proceeding;
    (5) The time reasonably spent in light of the difficulty or 
complexity of the issues in the proceeding; and
    (6) Any other factors that bear on the value of the services 
provided.
    (d) The adjudicative officer may award the reasonable cost of any 
study, analysis, engineering report, test, project, or similar matter 
prepared on your behalf to the extent that:
    (1) The charge for the service does not exceed the prevailing rate 
for similar services; and
    (2) The study or other matter was necessary for preparation of your 
case.

Information Required From Applicants


Sec.  4.610  What information must my application for an award contain?

    (a) Your application for an award of fees and expenses under the 
Act must:
    (1) Identify you;
    (2) Identify the proceeding for which an award is sought;
    (3) Show that you have prevailed;
    (4) Specify the position of the Department or other agency that you 
allege was not substantially justified;
    (5) Unless you are an individual, state the number of your 
employees and those of all your affiliates, and describe the type and 
purpose of your organization or business;
    (6) State the amount of fees and expenses for which you seek an 
award;
    (7) Be signed by you or your authorized officer or attorney;
    (8) Contain or be accompanied by a written verification under oath 
or under penalty of perjury that the information in the application is 
true and correct; and
    (9) Unless one of the exceptions in paragraph (b) of this section 
applies, include a statement that:
    (i) Your net worth does not exceed $2 million, if you are an 
individual; or
    (ii) Your net worth and that of all your affiliates does not exceed 
$7 million in the aggregate, if you are not an individual.
    (b) You do not have to submit the statement of net worth required 
by paragraph (a)(9) of this section if you do any of the following:
    (1) Attach a copy of a ruling by the Internal Revenue Service that 
you qualify as a tax-exempt organization described in 26 U.S.C. 
501(c)(3);
    (2) Attach a statement describing the basis for your belief that 
you qualify under 26 U.S.C. 501(c)(3), if you are a tax-exempt 
organization that is not required to obtain a ruling from the Internal 
Revenue Service on your exempt status;
    (3) State that you are a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)); 
or
    (4) Seek fees and expenses under Sec.  4.605(c) and provide 
information demonstrating that you qualify as a small entity under 5 
U.S.C. 601.
    (c) You may also include in your application any other matters that 
you wish the adjudicative officer to consider in determining whether 
and in what amount an award should be made.


Sec.  4.611  What information must I include in my net worth exhibit?

    (a) Unless you meet one of the criteria in Sec.  4.610(b), you must 
file with your application a net worth exhibit that meets the 
requirements of this section. The adjudicative officer may also require 
that you file additional information to determine your eligibility for 
an award.
    (b) The exhibit must show your net worth and that of any affiliates 
when the proceeding was initiated. The exhibit may be in any form that:
    (1) Provides full disclosure of your and your affiliates' assets 
and liabilities; and
    (2) Is sufficient to determine whether you qualify under the 
standards in this subpart.
    (c) Ordinarily, the net worth exhibit will be included in the 
public record of the proceeding. However, if you object to public 
disclosure of information in any portion of the exhibit and believe 
there are legal grounds for withholding it from disclosure, you may 
submit that portion of the exhibit directly to the adjudicative officer 
in a sealed envelope labeled ``Confidential Financial Information,'' 
accompanied by a motion to withhold the information from public 
disclosure.
    (1) The motion must describe the information sought to be withheld 
and explain, in detail:
    (i) Why it falls within one or more of the exemptions from 
mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 
552(b);
    (ii) Why public disclosure of the information would adversely 
affect you; and
    (iii) Why disclosure is not required in the public interest.
    (2) You must serve the net worth exhibit and motion on counsel 
representing the agency against which you seek an award, but you are 
not required to serve it on any other party to the proceeding.
    (3) If the adjudicative officer finds that the information should 
not be withheld from disclosure, it must be placed in the public record 
of the proceeding. Otherwise, any request to inspect or copy the 
exhibit will be disposed of in accordance with the Department's 
procedures under the Freedom of Information Act, 43 CFR 2.7 et seq.


Sec.  4.612  What documentation of fees and expenses must I provide?

    (a) Your application must be accompanied by full documentation of 
the fees and expenses for which you seek an award, including the cost 
of any study, analysis, engineering report, test, project, or similar 
matter.
    (b) You must submit a separate itemized statement for each 
professional firm or individual whose services are covered by the 
application, showing:
    (1) The hours spent in connection with the proceeding by each 
individual;
    (2) A description of the specific services performed;
    (3) The rates at which each fee has been computed;
    (4) Any expenses for which reimbursement is sought;
    (5) The total amount claimed; and
    (6) The total amount paid or payable by you or by any other person 
or entity for the services provided.
    (c) The adjudicative officer may require you to provide vouchers, 
receipts, logs, or other substantiation for any fees or expenses 
claimed, in accordance with Sec.  4.624.


Sec.  4.613  When may I file an application for an award?

    (a) You may file an application whenever you have prevailed in the 
proceeding or in a significant and discrete substantive portion of the 
proceeding. You must file the application no later than 30 days after 
the final disposition of the proceeding.
    (b) Consideration of an application for an award must be stayed if:
    (1) Any party seeks review or reconsideration of a decision in a 
proceeding in which you believe you have prevailed; or
    (2) The Department or other agency (or the United States on its 
behalf) appeals an adversary adjudication to a court.
    (c) A stay under paragraph (b)(1) of this section will continue 
until there has been a final disposition of the review or 
reconsideration of the decision. A stay under paragraph (b)(2) of this 
section will continue until either:

[[Page 6369]]

    (1) A final and unreviewable decision is rendered by the court on 
the appeal; or
    (2) The underlying merits of the case have been finally determined.

Procedures for Considering Applications


Sec.  4.620  How must I file and serve documents?

    You must file and serve all documents related to an application for 
an award under this subpart on all other parties to the proceeding in 
the same manner as other pleadings in the proceeding, except as 
provided in Sec.  4.611(c) for confidential information. The Department 
or other agency and all other parties must likewise file and serve 
their pleadings and related documents on you and on each other, in the 
same manner as other pleadings in the proceeding.


Sec.  4.621  When may the Department or other agency file an answer?

    (a) Within 30 days after service of an application, the Department 
or other agency against which an award is sought may file an answer to 
the application. However, if consideration of an application has been 
stayed under Sec.  4.613(b), the answer is due within 30 days after the 
final disposition of the review or reconsideration of the decision.
    (1) Except as provided in paragraph (a)(2) of this section, failure 
to file an answer within the 30-day period may be treated as a consent 
to the award requested. In such case, the adjudicative officer will 
issue a decision in accordance with Sec.  4.625 based on the record 
before him or her.
    (2) Failure to file an answer within the 30-day period will not be 
treated as a consent to the award requested if the Department or other 
agency either:
    (i) Requests an extension of time for filing; or
    (ii) Files a statement of intent to negotiate under paragraph (b) 
of this section.
    (b) If the Department or other agency and you believe that the 
issues in the fee application can be settled, you may jointly file a 
statement of intent to negotiate a settlement. Filing this statement 
will extend for an additional 30 days the time for filing an answer, 
and the adjudicative officer may grant further extensions if you and 
the agency counsel so request.
    (c) The answer must explain in detail any objections to the award 
requested and identify the facts relied on to support the Department's 
or other agency's position. If the answer is based on any alleged facts 
not already in the record of the proceeding, the Department or other 
agency must include with the answer either supporting affidavits or a 
request for further proceedings under Sec.  4.624.


Sec.  4.622  When may I file a reply?

    Within 15 days after service of an answer, you may file a reply. If 
your reply is based on any alleged facts not already in the record of 
the proceeding, you must include with the reply either supporting 
affidavits or a request for further proceedings under Sec.  4.624.


Sec.  4.623  When may other parties file comments?

    Any party to a proceeding other than the applicant and the 
Department or other agency may file comments on an application within 
30 days after it is served or on an answer within 15 days after it is 
served. A commenting party may not participate further in the 
proceedings on the application unless the adjudicative officer 
determines that the public interest requires such participation in 
order to permit full exploration of matters raised in the comments.


Sec.  4.624  When may further proceedings be held?

    (a) Ordinarily, the determination of an award will be made on the 
basis of the written record. However, the adjudicative officer may 
order further proceedings, which will be held only when necessary for 
full and fair resolution of the issues and will be conducted as 
promptly as possible.
    (b) The adjudicative officer may order further proceedings on his 
or her own initiative or in response to a request by you or by the 
Department or other agency. A request for further proceedings under 
this section must:
    (1) Identify the information sought or the disputed issues; and
    (2) Explain why the additional proceedings are necessary to resolve 
the issues.
    (c) As to issues other than substantial justification (such as your 
eligibility or substantiation of fees and expenses), further 
proceedings under this section may include an informal conference, oral 
argument, additional written submissions, pertinent discovery, or an 
evidentiary hearing.
    (d) The adjudicative officer will determine whether the position of 
the Department or other agency was substantially justified based on the 
administrative record of the adversary adjudication as a whole.


Sec.  4.625  How will my application be decided?

    The adjudicative officer must issue a decision on the application 
promptly after completion of proceedings on the application. The 
decision must include written findings and conclusions on all of the 
following that are relevant to the decision:
    (a) Your eligibility and status as a prevailing party;
    (b) The amount awarded, and an explanation of the reasons for any 
difference between the amount requested and the amount awarded;
    (c) Whether the position of the Department or other agency was 
substantially justified;
    (d) Whether you unduly protracted the proceedings; and
    (e) Whether special circumstances make an award unjust.


Sec.  4.626  How will an appeal from a decision be handled?

    (a) If the adjudicative officer is an administrative law judge, you 
or the Department or other agency may appeal his or her decision on the 
application to the appeals board that would have jurisdiction over an 
appeal involving the merits of the proceeding. The appeal will be 
subject to the same regulations and procedures that would apply to an 
appeal involving the merits of the proceeding. The appeals board will 
issue the final Departmental or other agency decision on the 
application.
    (b) If the adjudicative officer is a panel of appeals board judges, 
their decision on the application is final for the Department or other 
agency.


Sec.  4.627  May I seek judicial review of a final decision?

    You may seek judicial review of a final Departmental or other 
agency decision on an award as provided in 5 U.S.C. 504(c)(2).


Sec.  4.628  How will I obtain payment of an award?

    (a) To obtain payment of an award against the Department or other 
agency, you must submit:
    (1) A copy of the final decision granting the award; and
    (2) A certification that no party is seeking review of the 
underlying decision in the United States courts, or that the process 
for seeking review of the award has been completed.
    (b) If the award is against the Department:
    (1) You must submit the material required by paragraph (a) of this 
section to the following address:
    Director, Office of Financial Management, Policy, Management and

[[Page 6370]]

Budget, U.S. Department of the Interior, Washington, DC 20240.
    (2) Payment will be made by electronic funds transfer whenever 
possible. A representative of the Department will contact you for the 
information the Department needs to process the electronic funds 
transfer.
    (c) If the award is against another agency, you must submit the 
material required by paragraph (a) of this section to the chief 
financial officer or other disbursing official of that agency. Agency 
counsel must promptly inform you of the title and address of the 
appropriate official.
    (d) The Department or other agency will pay the amount awarded to 
you within 60 days of receiving the material required by this section.

[FR Doc. 06-1146 Filed 2-7-06; 8:45 am]
BILLING CODE 4310-79-P