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Implementation of the Equal Access to Justice Act in Agency Proceedings
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: February 8, 2006 (Volume 71, Number 26)]
[Rules and Regulations]
[Page 6364-6370]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08fe06-12]
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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.
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