Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Proposed Rules 58167 

in the Unfunded Mandates Reform Act 

of 1995 (Public Law 104–4). 

This proposed rule also does not have 

tribal implications because it will not 

have a substantial direct effect on one or 

more Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

proposes to approve a state rule 

implementing a Federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the Clean 

Air Act. This proposed rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This proposed 

rule does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: September 27, 2005. 

Richard E. Greene, 

Regional Administrator, Region 6. 

[FR Doc. 05–19998 Filed 10–4–05; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[R05–OAR–2005–IN–0006; FRL–7981–7] 

Determination of Attainment, Approval 

and Promulgation of Implementation 

Plans and Designation of Areas for Air 

Quality Planning Purposes; Indiana; 

Redesignation of the Evansville Area 

to Attainment of the 8-Hour Ozone 

Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule; extension of 

public comment period. 

SUMMARY: EPA is extending the 

comment period for a proposed rule 

published September 9, 2005 (70 FR 

53605). On September 9, 2005, EPA 

proposed to approve the State of 

Indiana’s request to redesignate the 

Evansville area (Vanderburgh and 

Warrick Counties) to attainment of the 

8-hour ozone National Ambient Air 

Quality Standard. In conjunction with 

the proposed approval of the 

redesignation request for the Evansville 

area, EPA proposed to approve the 

State’s ozone maintenance plan for the 

8-hour ozone NAAQS through 2015 in 

this area as a revision to the Indiana 

State Implementation Plan. EPA also 

proposed to approve 2015 Volatile 

Organic Compounds and Oxides of 

Nitrogen Motor Vehicle Emissions 

Budgets, which are supported by and 

consistent with the 10-year maintenance 

plan for this area, for purposes of 

transportation conformity. In response 

to a September 9, 2005, request from 

Valley Watch, Inc., EPA is extending the 

comment period for 7 days. 

DATES: The comment period is extended 

to October 18, 2005. 

ADDRESSES: Submit comments, 

identified by Regional Material in 

EDocket (RME) ID No. R05–OAR–2005–

IN–0006, to: John M. Mooney, Chief, 

Criteria Pollutant Section, (AR–18J), 

U.S. Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604. E-mail: 

mooney.john@epa.gov. Additional 

instructions to comment can be found in 

the notice of proposed rulemaking 

published September 9, 2005 (70 FR 

53605). 

FOR FURTHER INFORMATION CONTACT: 

Edward Doty, Environmental Scientist, 

Criteria Pollutant Section, Air Programs 

Branch (AR–18J), United States 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 886–6057, 

Doty.Edward@epa.gov. 

Dated: September 29, 2005. 

Bharat Mathur, 

Acting Regional Administrator, Region 5. 

[FR Doc. 05–20094 Filed 10–4–05; 8:45 am] 

BILLING CODE 6560–50–P 

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: Proposed rule. 

SUMMARY: The Office of Hearings and 

Appeals (OHA) is proposing to amend 

its existing 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 

OHA adopted the existing regulations in 

1983. 

DATES: You should submit your 

comments by December 5, 2005. 

ADDRESSES: You may submit comments, 

identified by the number 1094–AA49, 

by any of the following methods: 

—Federal rulemaking portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

—E-mail: John_Strylowski@ios.doi.gov. 

Include ‘‘RIN 1094–AA49’’ in the 

subject line of the message. 

—Fax: 703–235–9014. 

—Mail: Director, Office of Hearings and 

Appeals, Department of the Interior, 

801 N. Quincy Street, Suite 300, 

Arlington, Virginia 22203. 

—Hand delivery: Director, Office of 

Hearings and Appeals, Department of 

the Interior, 801 N. Quincy Street, 

Suite 400, Arlington, Virginia 22203. 

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: 

58168 Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Proposed Rules 

I. Public Comments 

If you wish to comment on this 

proposed rule, you may submit your 

comments by any of the methods listed 

in the ADDRESSES section. 

Our practice is to make comments, 

including names and home addresses of 

respondents, available for public review 

during regular business hours. 

Individual respondents may request that 

we withhold their home address from 

the rulemaking record. We will honor 

the request to the extent allowable by 

law. 

In some circumstances we may 

withhold from the rulemaking record a 

respondent’s identity, as allowable by 

law. If you wish us to withhold your 

name and/or address, you must state 

this prominently at the beginning of 

your comment. However, we will not 

consider anonymous comments. We 

will make all submissions from 

organizations or businesses, and from 

individuals identifying themselves as 

representatives or officials or 

organizations or businesses, available 

for public inspection in their entirety. 

II. Background 

Originally enacted in 1980, the Equal 

Access to Justice Act (the Act or EAJA) 

provides that ‘‘[a]n agency that conducts 

an adversary adjudication shall award, 

to a prevailing party other than the 

United States, fees and other expenses 

incurred by that party in connection 

with that proceeding, unless the 

adjudicative officer of the agency finds 

that the position of the agency was 

substantially justified or that special 

circumstances make an award unjust.’’ 5 

U.S.C. 504(a)(1) (2000). The Act has 

been amended several times since 1980, 

most recently in 1996, when the 

maximum amount of fees that may 

normally be awarded to an attorney or 

agent was increased from $75 per hour 

to $125 per hour. 5 U.S.C. 

504(b)(1)(A)(ii). 

OHA issued final regulations 

implementing the Act in 1983. 43 CFR 

4.601–4.629, 48 FR 17595 (April 25, 

1983). Those regulations were based on 

model rules published in 1981 by the 

Administrative Conference of the 

United States (ACUS). 46 FR 32900 

(June 25, 1981). ACUS published 

revised model rules in 1986 that 

reflected the amendments Congress 

made when it re-authorized the Act in 

1985. 1 CFR part 315 (1995), 51 FR 

16659 (May 6, 1986); see Administrative 

Conference of the U.S., Federal 

Administrative Procedure Sourcebook at 

419 (2d ed. 1992). ACUS did not 

publish model rules reflecting 

amendments to the Act made since 1985 

before ACUS was terminated in 1996. 

In preparing these revised regulations 

implementing the Act, OHA has used 

the 1986 ACUS model rules as a point 

of departure, modifying them to put 

them in plain language, to reflect more 

recent amendments to the Act, and to 

make certain changes we believe are 

warranted for reasons explained in the 

following section-by-section analysis. 

We do not discuss changes that are 

simply editorial. Readers may find it 

helpful to have a copy of the 1986 

model rules available as they review 

this proposed rule. 

III. Section-by-Section Analysis 

Section 4.601 What is the purpose of 

this subpart? 

This regulation is based on the 

‘‘purpose’’ section of the 1986 model 

rules, 1 CFR 315.101. We propose using 

the phrase ‘‘the Department or other 

agency’’ rather than ‘‘this agency’’

because OHA conducts proceedings for 

some agencies outside the Department, 

e.g., the Indian Health Service. See the 

proposed definition of ‘‘other agency’’

in section 4.602. 

The regulations in this subpart apply 

only to administrative proceedings 

under 5 U.S.C. 504, not to judicial 

proceedings under EAJA, 28 U.S.C. 2412 

(2000), or to the attorney fee provisions 

of any other statute. 

Section 4.602 What definitions apply 

to this subpart? 

We propose revising most of the 

definitions in our previous regulations 

and have added some definitions. 

We propose adding ‘‘deciding’’ before 

‘‘official(s) who presided’’ in the 

definition of ‘‘adjudicative officer’’

because it is in the Act, 5 U.S.C. 

504(b)(1)(D). ACUS suggested that the 

adjudicative officer should normally be 

the person who made the decision on 

the merits, but stated its belief that 

‘‘agencies can properly assign EAJA 

petitions to new board members or 

panels where illness, retirement, or 

other specific circumstances would 

prevent assignment to the original 

member.’’ 51 FR 16663–64 (May 6, 

1986).See United States v. Willsie, 155 

IBLA 296, 297–98 (2001). We are 

proposing language to cover such 

circumstances. 

Within OHA, the adjudicative officer 

will often be an administrative law 

judge, but in some cases, it may be a 

panel of two or more appeals board 

judges. The term ‘‘adjudicative officer’’

is therefore used to include both a single 

deciding official and a panel of deciding 

officials issuing a joint decision. 

Paragraphs (1) and (2) of the proposed 

definition of ‘‘Adversary adjudication’’

are based on the second sentence of the 

‘‘proceedings covered’’ section of the 

model rules, 1 CFR 315.103(a). 

Paragraphs (3) and (4) are based on 1986 

and 1993 amendments to the Act, Pub. 

L. 99–509 and Pub. L. 103–141. 

The proposed definition of ‘‘affiliate’’

is based on the second sentence of 

paragraph (f) of the ‘‘eligibility’’ section 

of the model rules, 1 CFR 315.104(f). 

The proposed definition of ‘‘demand’’

is based on a 1996 amendment to the 

Act, Pub. L. 104–121;see 5 U.S.C. 

504(b)(1)(F). 

The proposed definition of ‘‘final 

disposition’’ is based on paragraph (b) of 

the ‘‘when an application may be filed’’

section of the model rules, 1 CFR 

315.204. Under the definition, a 

settlement or voluntary dismissal of the 

proceeding may serve as the final 

disposition, in which case any 

application for fees and expenses would 

be due within 30 days from that event, 

under section 4.613(a). But a settlement 

or voluntary dismissal may not be a 

sufficient basis for an award. 

For example, if the settlement or 

voluntary dismissal occurs at the 

hearings level because the Department 

or other agency has voluntarily changed 

its position in response to the filing of 

the proceeding and before there has 

been any ruling on the merits, the 

applicant will be unable to show it is a 

prevailing party entitled to fees. 

Buckhannon Board & Care Home, Inc. v. 

West Virginia Dept. of Health and 

Human Resources, 532 U.S. 598 (2001); 

Brickwood Contractors, Inc. v. United 

States, 288 F.3d 1371 (Fed. Cir. 

2002);Perez-Arellano v. Smith, 279 F.3d 

791 (9th Cir. 2002). On the other hand, 

if the settlement or voluntary dismissal 

occurs at the appeals board level 

because the Department or other agency 

has changed its position in response to 

an adverse ruling on the merits at the 

hearings level, the applicant will likely 

be able to show that it is a prevailing 

party potentially entitled to fees. 

We propose adding a definition of 

‘‘other agency,’’ as discussed above in 

connection with section 4.601. 

The proposed definition of ‘‘party’’ is 

drawn from 1 CFR 315.104(a) of the 

model rules and a 1996 amendment of 

the Act, Pub. L. 104–121. 

The proposed definition of ‘‘position 

of the Department or other agency’’ is 

based on the Act, 5 U.S.C. 504(b)(1)(E), 

but the exception provided in the Act 

has been transferred to section 4.605(b), 

as suggested in the ‘‘standards for 

awards’’ section of the model rules, 1 

CFR 315.105(b). 

Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Proposed Rules 58169 

Section 4.603 What proceedings are 

covered by this subpart? 

Paragraphs (a), (b)(1), and (b)(2) are 

based on the ‘‘proceedings covered’’

section of the model rules, 1 CFR 

315.103(a), except that the second 

sentence of section 315.103(a) has been 

moved to the definition of ‘‘adversary 

adjudication’’ in section 4.602, as stated 

above. Under that definition, an 

‘‘adjudication under 5 U.S.C. 554’’

includes those proceedings required by 

a statute to be conducted under section 

554, e.g., section 9 of the Taylor Grazing 

Act, 43 U.S.C. 315h (2000), see Bureau 

of Land Management v. Ericsson, 98 

IBLA 258 (1987), and the Indian SelfDetermination and Education 

Assistance Act, as amended, 25 U.S.C. 

450f(b)(3) (2000). 

Paragraph (a) also covers appeals of 

decisions of contracting officers made 

pursuant to section 6 of the Contract 

Disputes Act of 1978, 41 U.S.C. 605, 

before the Interior Board of Contract 

Appeals under section 8 of that Act, 41 

U.S.C. 607. 

Paragraph (b)(1) would clarify that the 

Act does not cover other hearings or 

appeals that are not governed by 5 

U.S.C. 554, even if the Department has 

elected to conduct such hearings or 

appeals using procedures comparable to 

those under section 554. Examples 

include cases referred by an appeals 

board for a fact-finding hearing under 43 

CFR 4.337(a) or 4.415, and personnel 

grievance hearings for Departmental 

employees under 370 Departmental 

Manual 771, Subchapter 3. 

In Collord v. U.S. Department of the 

Interior, 154 F.3rd 933 (9th Cir. 1998), 

the U.S. Court of Appeals for the Ninth 

Circuit held that, because a mining 

claim is a property interest that may not 

be extinguished without due process, 

section 554 governs mining claim 

contests, and therefore those 

proceedings are adversary adjudications 

under the Act. The Interior Board of 

Land Appeals (IBLA) has followed the 

Collord decision with respect to mining 

claim contests, United States v. Willsie, 

155 IBLA 296, 297 (2001), and has 

extended its applicability to Alaska 

Native Allotment Act claim contests, 

Heirs of David F. Berry, 156 IBLA 341, 

343–44 (2002). 

However, the Ninth Circuit’s reliance 

in Collord on Wong Yang Sung v. 

McGrath, 339 U.S. 33, 50–51 (1950), is 

open to question.See A Guide to Federal 

Agency Adjudication ¶¶ 3.02, 11.03 

(Michael Asimow, ed., American Bar 

Association, 2003); 1 Richard J. Pierce, 

Jr., Administrative Law Treatise, § 8.2 

(4th ed. 2002). 

Under existing court precedent, 

therefore, mining claim contests and 

Native allotment contests in the Ninth 

Circuit are deemed to fall within the 

proceedings covered by section 4.603(a), 

while mining claim contests in other 

judicial circuits may not be. See Kaycee 

Bentonite Corp., 79 IBLA 182 (1984) 

(pre-Collord analysis of the applicability 

of the Act to mining claim contest 

proceedings). 

Paragraph (c) is based on 1 CFR 

315.103(c) of the model rules. 

Section 4.604 When am I eligible for 

an award? 

We propose to omit section 4.604 of 

our previous regulations, or any revision 

of that section based on the ‘‘when the 

Act applies’’ section of the model rules, 

1 CFR 315.102, because it is no longer 

needed. Section 4.605 of our previous 

regulations would become section 

4.604. 

Paragraph (a) is based on the 

‘‘eligibility of applicants’’ section of the 

model rules, 1 CFR 315.104(a), except 

that we have moved the definition of 

‘‘party’’ to section 4.602, as stated 

above. 

Paragraph (b) is based on 1 CFR 

315.104(b). We propose adding 

paragraph (6) based on a 1996 

amendment to 5 U.S.C. 504(b)(1)(B), 

Pub. L. 104–121. 

Paragraphs (c) through (g) are based 

on 1 CFR 315.104(c) through (g), except 

that the second sentence of paragraph 

315.104(f) was moved to section 4.602 

as the definition of ‘‘affiliate.’’

Section 4.605 Under what 

circumstances may I receive an award? 

Paragraph (a) is based on the 

‘‘standards for awards’’ section of the 

model rules, 1 CFR 315.105(a), except 

that the second sentence of the model 

rule, which is based on 5 U.S.C. 

504(b)(1)(E), has been moved to the 

definition of ‘‘position of the 

Department or other agency’’ in section 

4.602, as stated above. 

Consistent with the model rules, 

section 4.605(a) provides that an award 

may be granted to a party who has 

prevailed in ‘‘the proceeding’’ or in ‘‘a 

significant and discrete substantive 

portion of a proceeding.’’ The latter 

phrase could include, in an appropriate 

case, an interlocutory appeal on a 

significant, separable issue, or an appeal 

that results in a remand to an ALJ for 

further proceedings. It would not 

include a ruling on a purely procedural 

issue during the course of a proceeding. 

See 46 FR 32900, 32907–08 (June 25, 

1981); Van Hoomissen v. Xerox Corp., 

503 F.2d 1131, 1133 (9th Cir. 1974); 

Bohn v. Heckler, 613 F. Supp. 232, 234–

35 (N.D. Ill. 1965). 

Paragraph (b) is based on 1 CFR 

315.105(b) and 5 U.S.C. 504(b)(1)(E). 

Paragraph (c) is based on 5 U.S.C. 

504(a)(4), as added by a 1996 

amendment, Pub. L. 104–121. 

Section 4.606 What fees and expenses 

may be allowed? 

Paragraph (a) is based on the 

‘‘allowable fees and expenses’’ section 

of the model rules, 1 CFR 315.106(a)–

(b), except that the maximum hourly fee 

has been increased from $75 per hour to 

$125 per hour, in accordance with a 

1996 amendment, Pub. L. 104–121. 

Instead of supplying a fixed dollar 

amount for the rate of an expert witness, 

we propose substituting a standard of 

not more than the highest rate at which 

the Department or other agency pays 

expert witnesses with similar expertise. 

Paragraphs (b) and (c) are based on 

the corresponding paragraphs of the 

model rule, 1 CFR 315.106(c) and (d). 

We have omitted from section 4.606 

any reference to fees for agents, who are 

included in the Act at section 504(a)(2), 

(b)(1)(A) and in section 315.105 of the 

model rules. As used in the Act, the 

term ‘‘agent’’ does not mean any person 

who acts on behalf of a party; rather, it 

means a specialized non-attorney 

practitioner who is authorized to 

represent clients with special 

permission of the tribunal. Fanning, 

Phillips and Molnar v. West, 160 F.3d 

717 (Fed. Cir. 1998); Cook v. Brown, 68 

F.3d 447 (Fed. Cir. 1995). 

The Department does not authorize 

specialized non-attorney practitioners to 

represent clients before it, see 43 CFR 

1.3 (2004). Under section 1.3(b)(3), an 

individual who is not an attorney can 

represent himself, a member of his 

family, a partnership of which he is a 

member, a corporation of which he is an 

officer or full-time employee, etc.; but 

that does not make the individual an 

‘‘agent’’ within the meaning of the Act. 

Consequently, a party could not seek 

fees for an agent in a proceeding before 

OHA, and there is no need for these 

regulations to include a reference to 

agents. 

Section 4.610 What information must 

my application for an award contain? 

This section is based on the ‘‘contents 

of application’’ section of the model 

rules, 1 CFR 315.201. We propose 

adding paragraph (b)(4) to crossreference the new language in section 

4.605(c). 

58170 Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Proposed Rules 

Section 4.611 What information must I 

include in my net worth exhibit? 

This section is based on the ‘‘net 

worth exhibit’’ section of the model 

rules, 1 CFR 315.202, except we propose 

adding a reference to a small entity in 

the first sentence of paragraph (a). We 

have also broken the paragraphs of the 

model rule into shorter paragraphs and 

have added a cross reference in the last 

sentence to the Department’s Freedom 

of Information Act regulations. 

Section 4.612 What documentation of 

fees and expenses must I provide? 

This section is based on the 

‘‘documentation of fees and expenses’’

section of the model rules, 1 CFR 

315.203. 

Section 4.613 When may I file an 

application for an award? 

This section is based on the ‘‘when an 

application may be filed’’ section of the 

model rules, 1 CFR 315.204, except that 

paragraph (b) of the model rules has 

been moved to the definitions in section 

4.602. 

Section 4.620 How must I file and 

serve documents? 

This section is based on the ‘‘filing 

and service of documents’’ section of 

the model rules, 1 CFR 315.301. 

Section 4.621 When may the 

Department or other agency file an 

answer? 

This section is based on the ‘‘answer 

to application’’ section of the model 

rules, 1 CFR 315.302. 

Section 4.622 When may I file a reply? 

This section is based on the ‘‘reply’’

section of the model rules, 1 CFR 

315.303. 

Section 4.623 When may other parties 

file comments? 

This section is based on the 

‘‘comments by other parties’’ section of 

the model rules, 1 CFR 315.304. 

Section 4.624 When may further 

proceedings be held? 

This section is based on the ‘‘further 

proceedings’’ section of the model rules, 

1 CFR 315.306. 

Section 4.625 How will my application 

be decided? 

This section is based on the 

‘‘decision’’ section of the model rules, 1 

CFR 315.307. We have omitted the final 

sentence about allocating awards among 

agencies because it is not expected to 

come up in cases that OHA handles. 

Section 4.626 How will an appeal from 

a decision be handled? 

In this section we have retained the 

concept of the ‘‘agency review’’ section 

of the model rules, 1 CFR 315.308, that 

review of adjudicative officer decisions 

on applications take place in accordance 

with the Department’s regular review 

proceedings. For example: 

• An appeal from a decision of an 

administrative law judge on an 

application for an award in a proceeding 

under the Taylor Grazing Act would be 

appealed to IBLA under 43 CFR 

4.478(e), 4.410 et seq. IBLA would 

render a final decision for the 

Department. 

• An appeal from a decision of an 

OHA administrative law judge on an 

application for an award in a proceeding 

under the Indian Self-Determination 

and Education Assistance Act involving 

the Indian Health Service would be 

appealed to the Departmental Appeals 

Board, Department of Health and 

Human Services. The Board would 

render a final decision for that agency. 

• A decision by a panel of judges of 

the Interior Board of Contract Appeals 

on an application for an award in a 

proceeding under the Contract Disputes 

Act would be final for the Department. 

Section 4.627 May I seek judicial 

review of a final Departmental or other 

agency decision? 

This section is based on the ‘‘judicial 

review’’ section of the model rules, 1 

CFR 315.309. 

Section 4.628 How will I obtain 

payment of an award? 

This section is based on the ‘‘payment 

of award’’ section of the model rules, 1 

CFR 315.310. 

IV. Review Under Procedural Statutes 

and Executive Orders 

A. Regulatory Planning and Review 

(E.O. 12688) 

In accordance with the criteria in 

Executive Order 12866, the Office of 

Management and Budget (OMB) has 

reviewed a summary of this rule and has 

determined that this is not a significant 

rule. OMB has not reviewed the rule 

itself under Executive Order 12866. 

1. This rule would not have an annual 

economic effect of $100 million or 

adversely affect an economic sector, 

productivity, competition, jobs, the 

environment, public health or safety, or 

other units of government. A costbenefit and economic analysis is not 

required. These amended regulations 

would have virtually no effect on the 

economy because they merely 

implement amendments to EAJA that 

are already in effect. 

2. This rule would not create 

inconsistencies with or interfere with 

other agencies’ actions, since all 

agencies are subject to EAJA and its 

amendments. 

3. This rule would not alter the 

budgetary effects of entitlements, grants, 

user fees, loan programs, or the rights 

and obligations of their recipients. 

These proposed 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 proposed 

regulations would merely implement 

amendments to EAJA that are already in 

effect. 

B. Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rule would 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 proposed 

regulations merely implement 

amendments to EAJA that are already in 

effect. A Small Entity Compliance Guide 

is not required. 

C. 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. Would not have an annual effect on 

the economy of $100 million or more. 

The proposed regulations merely 

implement amendments to EAJA that 

are already in effect. They should have 

no effect on the economy. 

2. Would 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, 

would not affect costs or prices for 

citizens, individual industries, or 

government agencies. 

3. Would 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. 

Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Proposed Rules 58171 

D. Unfunded Mandates Reform Act 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1531 et 

seq.), we find that: 

1. This rule would 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, 

would neither uniquely nor 

significantly affect these governments. A 

statement containing the information 

required by the Unfunded Mandates 

Reform Act, 2 U.S.C. 1531 et seq., is not 

required. 

2. This rule would not produce an 

unfunded Federal mandate of $100 

million or more on State, local, or tribal 

governments or the private sector in any 

year, i.e., it is not a ‘‘significant 

regulatory action’’ under the Unfunded 

Mandates Reform Act. 

E. Takings (E.O. 12630) 

In accordance with Executive Order 

12630, we find that the rule would 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. 

F. 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. 

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

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that this rule would not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. Because these 

regulations would merely implement 

amendments to EAJA that are already in 

effect, they would not burden either 

administrative or judicial tribunals. 

H. Paperwork Reduction Act 

This proposed rule would 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 proposed rule is an 

administrative and procedural rule that 

simply updates existing procedural 

regulations implementing EAJA, based 

on amendments to that Act. 

I. 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 

the Department has determined 

ordinarily 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 proposed 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 

proposed rule. The proposed 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. 

J. 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 rules on Federally 

recognized Indian tribes and has 

determined that there are no potential 

effects. These rules would not affect 

Indian trust resources; they would 

merely implement amendments to EAJA 

that are already in effect. 

K. Effects on the Nation’s Energy Supply 

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, would not 

affect energy supply or consumption. 

L. Clarity of This Regulation 

Executive Order 12866 requires each 

agency to write regulations that are easy 

to understand. We invite your 

comments on how to make this rule 

easier to understand, including answers 

to the following: (1) Are the 

requirements in the rule clearly stated? 

(2) Does the rule contain technical 

language or jargon that interferes with 

its clarity? (3) Does the format of the 

rule (grouping and order of sections, use 

of headings, paragraphing, etc.) aid or 

reduce its clarity? (4) Would the rule be 

easier to understand if it were divided 

into more (but shorter) sections? (A 

‘‘section’’ appears in bold type and is 

preceded by the symbol ‘‘§ ’’ and a 

numbered heading; for example, § 4.601 

What is the purpose of these 

regulations?) (5) Is the description of the 

rule in the SUPPLEMENTARY INFORMATION

section of the preamble helpful in 

understanding the proposed rule? (6) 

What else could we do to make the rule 

easier to understand? 

Send a copy of any comments that 

concern how we could make this rule 

easier to understand to: Office of 

Regulatory Affairs, Department of the 

Interior, Room 7229, 1849 C Street, 

NW., Washington, DC 20240. You may 

also e-mail the comments to this 

address: Exsec@ios.doi.gov. 

List of Subjects in 43 CFR Part 4 

Administrative practice and 

procedure; Claims; Equal access to 

justice. 

Dated: September 27, 2005. 

P. Lynn Scarlett, 

Assistant Secretary—Policy, Management 

and Budget. 

For the reasons set forth in the 

preamble, the Office of Hearings and 

Appeals proposes to revise part 4, 

subpart F, of title 43 of the Code of 

Federal Regulations 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? 

58172 Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Proposed Rules 

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 an 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). 

Subpart F—Implementation of the 

Equal Access to Justice Act in Agency 

Proceedings 

General Provisions 

§ 4.601 What is the purpose of this 

subpart? 

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 rules 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. 

§ 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, Pub. L. 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 

(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) that meets the eligibility 

criteria set forth in § 4.604. 

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. 

§ 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. 

§ 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 new 

worth of $7 million or less and 500 or 

fewer employees; or 

(6) For purposes of § 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. 

Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Proposed Rules 58173 

(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 § 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. 

§ 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. 

§ 4.606 What fees and expenses may be 

allowed? 

(a) The adjudicative officer must base 

awards under this subpart 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 to compensate 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 

witness as a separate item, if the 

attorney or witness ordinarily charges 

clients separately for those expenses. 

(b) 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; 

(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. 

(c) 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 

§ 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 

§ 4.605(c) and provide information 

demonstrating that you qualify as a 

small entity under 5 U.S.C. 601, 15 

U.S.C. 632, and 13 CFR part 121. 

(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. 

§ 4.611 What information must I include in 

my net worth exhibit? 

(a) Unless you meet one of the criteria 

in § 4.610(b), you must file with your 

58174 Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Proposed Rules 

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 

2.11 et seq. 

§ 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, as 

required by § 4.624. 

§ 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 any party 

seeks review or reconsideration of a 

decision in a proceeding in which you 

believe you have prevailed, pending 

final disposition of the review or 

reconsideration of the decision. 

(c) When the Department or other 

agency (or the United States on its 

behalf) appeals an adversary 

adjudication to a court, no decision on 

an application for fees and other 

expenses in connection with that 

adversary adjudication will be made 

until either: 

(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 

§ 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 § 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. 

§ 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 

§ 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 § 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 § 4.624. 

§ 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 § 4.624. 

§ 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 

Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Proposed Rules 58175 

exploration of matters raised in the 

comments. 

§ 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. 

§ 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. 

§ 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 rules 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. 

§ 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). 

§ 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 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. 05–19896 Filed 10–4–05; 8:45 am] 

BILLING CODE 4310–79–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 29 

[Docket OST–2005–22602] 

RIN 2105–AD46 

Debarment and Suspension 

(Nonprocurement) Requirements 

AGENCY: Office of the Secretary (OST), 

DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM); request for comments. 

SUMMARY: This proposal would amend 

Department of Transportation 

regulations implementing the 

governmentwide nonprocurement 

suspension and debarment 

requirements. Specifically, the DOT 

proposes to adopt the optional lower 

tier coverage prohibiting excluded 

parties from participating in 

subcontracts at tiers lower than the first 

tier below a covered nonprocurement 

transaction. 

DATES: Comments must be received on 

or before November 4, 2005. 

ADDRESSES: Mail or hand deliver 

comments to the U.S. Department of 

Transportation, Dockets Management 

Facility, Room PL–401, 400 Seventh 

Street, SW., Washington, DC 20590, or 

submit electronically at http:// 

dms.dot.gov. All comments should 

include the docket number that appears 

in the heading of this document. All 

comments received will be available for 

examination and copying at the above 

address from 9 a.m. to 5 p.m., e.t., 

Monday through Friday, except Federal 

holidays. Those desiring notification of 

receipt of comments must include a selfaddressed, stamped postcard or you 

may print the acknowledgment page 

that appears after submitting comments 

electronically. 

FOR FURTHER INFORMATION CONTACT: 

Ladd Hakes, Office of the Senior 

Procurement Executive, Office of 

Administration (M–61), (202) 366–4268, 

400 Seventh Street, SW., Washington, 

DC 20590–0001. Office hours are from 

7:45 a.m. to 4:15 p.m. e.t., Monday 

through Friday, except Federal holidays. 

SUPPLEMENTARY INFORMATION: 

Electronic Access and Filing 

You may submit or retrieve comments 

online through the Document 

Management System (DMS) at: http:// 

dmses.dot.gov. Acceptable formats 

include: MS Word (versions 95 to 97), 

MS Word for Mac (versions 6 to 8), Rich 

Text File (RTF), American Standard