[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Pages 28831-28834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14245]



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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 6

[Docket No. OST-96-1421 Notice 96-15]
RIN 2105-AB73


Implementation of Equal Access to Justice Act in Agency 
Proceedings

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department is proposing to update its regulation providing 
for the award of attorney fees and other expenses under the Equal 
Access to Justice Act to eligible individuals and entities who are 
parties to certain administrative proceedings before the Department and 
its various operating administrations. These revisions are necessitated 
by various statutory changes that have been made since the Department 
adopted its present rule in 1983. The Department is not, however, 
proposing any other substantive alterations to its regulation. All of 
the Department's proposed changes to its regulation either mirror the 
currently-applicable statutory requirements or are of a minor, non-
technical nature. This action is a response to the President's 
Regulatory Reinvention Initiative and is designed to update the 
regulation to reflect currently applicable law.

DATES: Comments should be received by August 5, 1996. Late-filed 
comments will be considered to the extent practicable.

ADDRESSES: Comments should be sent to Docket Clerk, Docket No. OST-96-
1421, Room PL-401, Department of Transportation, 400 Seventh Street, 
SW., Washington, DC 20590. For the convenience of persons who will be 
reviewing the docket, it is requested that commenters provide an 
original and three copies of their comments. Comments can be inspected 
from 9 a.m. to 5 p.m. Commenters who wish the receipt of their comments 
to be acknowledged should include a stamped, self-addressed postcard 
with their comments. The docket clerk will date-stamp the postcard and 
mail it to the commenter. Comments should be on 8 by 11 inch white 
paper using dark ink and should be without tabs and unbound.

FOR FURTHER INFORMATION CONTACT: Alexander J. Millard, Office of the 
General Counsel, U.S. Department of Transportation, 400 Seventh Street, 
SW., Room 4102, Washington, DC 20590, telephone (202) 366-9285, or S. 
Reid Alsop, Office of the Chief Counsel, Federal Highway 
Administration, U.S. Department of Transportation, 400 Seventh Street 
SW., Room 4230, Washington, DC 20590, telephone (202) 366-1371.

SUPPLEMENTARY INFORMATION: In his Regulatory Reinvention Initiative 
Memorandum of March 4, 1995, President Clinton directed that Federal 
agencies conduct a page-by-page review of all of their regulations and 
``eliminate or revise those that are outdated or otherwise in need of 
reform.'' In response to that directive, the Department has undertaken 
a review of its regulations including its rule governing the award of 
attorney fees and other expenses in certain administrative proceedings 
under the Equal Access to Justice Act (EAJA) (Pub. L. 96-481, 94 Stat. 
2325). The Department's regulation is codified at 49 CFR part 6.
    In 1983, the Department of Transportation (DOT) published a final 
regulation implementing EAJA in the administrative adjudicatory 
context, 48 FR 1068 (January 10, 1983). EAJA, which took effect on 
October 1, 1981, provides for the award of attorney fees and other 
expenses to parties who prevail over the Federal Government in certain 
administrative and court proceedings under section 554 of the 
Administrative Procedure Act (APA). It requires that agencies 
conducting proceedings under section 554 establish uniform procedures 
for making awards.
    DOT's final rule, 49 CFR part 6, therefore, established uniform 
procedures under the EAJA for any adversary adjudications conducted 
pursuant to section 554 by this Department or any of its operating 
administrations. As noted in the Department's regulation, currently 
three types of proceedings are specifically covered by the regulation; 
namely, Coast Guard license, certificate or document suspension and 
revocation proceedings, National Highway Traffic Safety Administration 
(NHTSA) fuel economy enforcement proceedings, and the Federal Highway 
Administration (FHWA) driver qualification and compliance order 
proceedings.
    Since DOT adopted its final rule in 1983, Congress has amended EAJA 
on a number of occasions in several respects. After reviewing these 
statutory changes, DOT has determined that its regulation needs to be 
revised to ensure that it comports with the current statutory 
requirements. DOT accordingly is proposing to modify the following 
sections of its rule:
    (a) Sec. 6.1 Purpose of these rules.
    The second sentence of this section presently provides:

    An eligible party may receive an award when it prevails over the 
Department of Transportation or any of its operating administrations 
unless the agency's position in the proceeding was substantially 
justified or special circumstances make an award unjust.

    The Department is proposing to delete this sentence. These 
standards do not completely reflect the currently-applicable 
requirements given various statutory changes that have been made to 5 
U.S.C. 504 since 1983. In place of this sentence, as discussed below, 
the Department is proposing to revise section 6.9. This section, as 
revised, would set forth, in some detail, the

[[Page 28832]]

statutory standards that now govern the granting of awards and 
expenses.
    (b) Sec. 6.3 When the Act applies.
    This section currently provides:

    The Act applies to any adversary adjudication pending before 
this agency at any time between October 1, 1981 and September 30, 
1984. This includes proceedings begun before October 1, 1981, if 
final agency action has not been taken before that date, and 
proceedings pending on September 30, 1984.
    This limitation was included in the Department's final rule because 
the statute as it was originally enacted was only to be effective for 
the period October 1, 1981 to October 1, 1984, on which date it was to 
expire pursuant to a repealer under section 203(c) of Pub. L. 96-481. 
That repealer, however, was itself repealed pursuant to section 6 of 
Pub. L. 99-80. Additionally, as discussed below, new standards 
governing awards were enacted pursuant to Pub. L. 104-121 effective 
March 29, 1996. Consequently, the Department is proposing to delete the 
current version of Sec. 6.3, and retitle and restate that section to 
read as follows:


Sec. 6.3  Applicability.

    Section 6.9(a) applies to any adversary adjudication pending before 
the Department on or after October 1, 1981. In addition, applicants for 
awards must also meet the standards of Sec. 6.9(b) for any adversary 
adjudication commenced on or after March 29, 1996.

    (c) Sec. 6.5 Proceedings covered.
    This section identifies various proceedings that are, and are not, 
subject to the Department's regulation. Currently, three specific types 
of proceedings are specifically identified as being covered by the 
Department's regulation; namely, (a) U.S. Coast Guard suspension or 
revocation of licenses, certificates or document proceedings, (b) 
National Highway Traffic Safety Administration fuel economy enforcement 
proceedings, and (c) Federal Highway Administration driver 
qualification and compliance order proceedings. However, this list is 
not exclusive and additional Departmental proceedings that satisfy the 
criteria in this Part can also be covered.
    The Department is proposing to add an several additional 
proceedings to this list. First, the Department is proposing to amend 
Sec. 6.5 to make it clear that its regulation is intended to encompass 
its aviation economic enforcement proceedings conducted by its Office 
of Aviation Enforcement and Proceedings. The Department, hence, is 
proposing to add the following language to Sec. 6.5:

and the Department's aviation economic enforcement proceedings 
conducted by its Office of Aviation Enforcement and Proceedings, 49 
U.S.C. Subtitle VII, 14 CFR Chapter II.

    The Department is taking this action to add these aviation 
enforcement proceedings in view of its decision, in a separate 
rulemaking, to terminate a nearly duplicative rule, 14 CFR part 373, 
that until now has covered these aviation enforcement proceedings. The 
Department inherited part 373 from the now-defunct Civil Aeronautics 
Board in 1985 as a result of the shut down of that agency, and the 
transfer of that agency's remaining functions to DOT pursuant to the 
Civil Aeronautics Board Sunset Act of 1984, Public Law 98-443, 98 Stat. 
1703. The Department has determined, also as a part of the President's 
Regulatory Reinvention Initiative, that it makes no sense to retain a 
totally separate EAJA regulation for its aviation enforcement 
proceedings.
    The Department is also updating the citations for the Coast Guard 
suspension and revocation proceedings referenced in section 6.5(a). In 
this regard, the Department is proposing to change the reference to 
``46 U.S.C. 239'' to ``46 U.S.C. 7701 et seq.'' In addition, the 
Department is proposing to add citations for the three additional Coast 
Guard proceedings, specifically:

    (a) 33 U.S.C. 1321(b)(6)(B)(ii), 33 CFR part 20 (to include 
class II civil penalties under the Clean Water Act); (b) 42 U.S.C. 
9609(b) (to include class II penalty provisions under the 
Comprehensive Environmental Response, Compensation and Liability 
Act; and (c) 46 CFR part 401 (to cover suspension and revocation of 
Certificates of Registry proceedings for Great Lakes Pilots.)

    The Department is further proposing to amend Sec. 6.5(a) to take 
note of the fact that since 1983 Congress has expanded the list of 
proceedings that are subject to the rule. Specifically, the Department 
is proposing to add the following language to this section:

    Also covered are any appeal of a decision made pursuant to 
section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) 
before an agency board of contract appeals as provided in section 8 
of that Act (41 U.S.C. 607), any hearing conducted under Chapter 38 
of title 31, and the Religious Freedom Restoration Act of 1993, 42 
U.S.C. 2000bb et seq.

    The inclusion of these additional proceedings is necessitated by 
section 6 of Pub.L. 95-563, November 1, 1978, 92 Stat. 2385; Pub.L. 99-
509, October 8, 1986, 100 Stat. 1948; and Pub.L. 103-141, November 16, 
1993, 107 Stat. 1489.
    (d) Sec. 6.7 Eligibility of applications.
    This section sets forth various minimum financial threshold 
standards, and other criteria, that applicants must satisfy in order to 
be eligible for an award. Various changes were made to these standards 
and criteria pursuant to Pub.L. 99-80, section 1(c)(1), August 5, 1985, 
99 Stat. 183, 186. For example, some of the dollar limits have been 
increased. Accordingly the Department is proposing to amend this 
section as follows:
    (a) Change the words ``5 U.S.C. 551(3)'' in the second sentence to 
``5 U.S.C. 504(b)(1)(B).''
    (b)(1) Change the words ``1 million'' to ``2 million.''
    (b)(2) Change the words ``5 million'' to ``7 million.''
    (b)(5) Change the words ``5 million'' to ``7 million.''
    In addition, the Department is proposing to add a new Sec. (b)(6), 
which would state:

    (b)(6) For the purposes of section 6.9(b) eligible applicants 
include small entities as defined in 5 U.S.C. 601.

    This change is necessitated by Pub.L. 104-121, March 29, 1996, 104 
Stat. 847.
    (e) Sec. 6.9 Standards for awards.
    Since the Department's adoption of its present EAJA regulation in 
1983, Congress has also altered the standards for granting awards. 
Section 6.9 sets forth the standards that were applicable when DOT 
adopted its rule. These standards need to be brought up to date. The 
Department, therefore, is proposing to delete the current version of 
Sec. 6.9 of its regulation in its entirety and to replace that section 
with a new Sec. 6.9, which would read as follows:

    (a) An eligible applicant may receive an award for fees and 
expenses incurred by that party in connection with a decision in 
favor of the applicant in a proceeding covered by this Part, unless 
the position of the Department over which the applicant has 
prevailed was substantially justified or special circumstances make 
the award sought unjust. The burden of proof that an award should 
not be made to an eligible applicant is on the Department where it 
has initiated the proceeding. No presumption arises that the 
Department's position was not substantially justified simply because 
the Department did not prevail. Whether or not the position of the 
Department was substantially justified shall be determined on the 
basis of the administrative record, as a whole, in the adversary 
adjudication for which fees and other expenses are sought. The 
``position of the Department'' means, in addition to the position 
taken by the agency in the adversary adjudication, the action or 
failure to act by the Department upon which the adversary 
adjudication may be based.
    (b) In the context of a Departmental proceeding to enforce a 
party's compliance with a statutory or regulatory requirement, if 
the demand by the Department is substantially in excess of the 
amount awarded to the government pursuant to the decision of the 
adjudicative officer and is unreasonable when compared with such

[[Page 28833]]

decision, under the facts and circumstances of the case, the 
adjudicative officer shall award to an eligible applicant party the 
fees and expenses related to defending against the excessive demand, 
unless the applicant party has committed a willful violation of law 
or otherwise acted in bad faith, or special circumstances make an 
award unjust. Fees and expenses awarded under this paragraph shall 
be paid only as a consequence of appropriations provided in advance. 
As used in this section, ``demand'' means the express demand of the 
Department which led to the adversary adjudication, but does not 
include a recitation by the Department of the maximum statutory 
penalty (i) in the administrative complaint, or (ii) elsewhere when 
accompanied by an express demand for a lesser amount.
    (c) The decision of the Department on the application for fees 
and other expenses shall be the final administrative decision under 
this section.
    (d) An award will be reduced or denied if the applicant has 
unduly or unreasonably protracted the proceeding.

    These changes are necessitated by Pub.L. 99-80, August 5, 1985, 99 
Stat. 183, 186; and Pub.L. 104-121, March 29, 1996, 104 Stat. 847.
    (f) Sec. 6.11 Allowable fees and expenses.
    The Department is proposing to change the figure ``$75.00'' in 
section 6.11(b) to ``$125.00''. This is also being done in response to 
Pub.L. 104-121, March 29, 1996, 104 Stat. 847.
    (g) Sec. 6.25 Answer to application.
    Finally, Sec. 6.25(c) contains a minor typographical error. 
Specifically, the words ``an identify'' should read ``and identify''. 
The Department is proposing to correct this error.

Regulatory Analyses and Notices

    This NPRM is considered to be a non-significant rulemaking under 
DOT's regulatory policies and procedures, 44 FR 11034. The NPRM was not 
subject to review by the Office of Information and Regulatory Affairs 
pursuant to Executive Order 12866.
    The proposal would have minimal economic impact, and accordingly no 
regulatory evaluation has been prepared. Indeed, the changes that are 
being proposed here, for the most part, merely track various statutory 
changes that have been enacted since the Department's adoption of its 
original final rule in 1983.
    The NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612, and it has been determined 
that it does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment. I certify that this proposal, 
if adopted, would not have a significant economic impact on a 
substantial number of small entities. This proposal is merely updating 
the regulation to reflect current statutory requirements.

List of Subjects in 49 CFR Part 6

    Administrative practice and proceeding, Transportation.

    For the reasons set out in the preamble, 49 CFR part 5 is proposed 
to be amended as follows:

PART 5--IMPLEMENTATION OF EQUAL ACCESS TO JUSTICE ACT IN AGENCY 
PROCEEDINGS.

    1. The authority citation for part 6 is revised to read as follows:

    Authority: 5 U.S.C. 504; 28 U.S.C. 2412.

    2. Section 6.1 is amended by removing the second sentence.
    3. Section 6.3 is revised to read as follows:


Sec. 6.3  Applicability.

    Section 6.9(a) applies to any adversary adjudication pending before 
the Department on or after October 1, 1981. In addition, applicants for 
awards must also meet the standards of Sec. 6.9(b) for any adversary 
adjudication commenced on or after March 29, 1996.
    4. In Sec. 6.5, paragraph (a) is revised to read as follows:


Sec. 6.5  Proceedings covered.

    (a) The Act applies to adversary adjudications conducted by the 
Department of Transportation. These are adjudications under 5 U.S.C. 
554 in which the position of the Department is represented by an 
attorney or other representative who enters an appearance and 
participates in the proceeding. Coverage of the Act begins at 
designation of a proceeding or issuance of a charge sheet. Any 
proceeding in which the Department may prescribe or establish a lawful 
present or future rate is not covered by the Act. Proceedings to grant 
or renew licenses are also excluded, but proceedings to modify, 
suspend, or revoke licenses are covered if they are otherwise 
``adversary adjudications.'' For the Department of Transportation, the 
types of proceedings covered include: Coast Guard suspension or 
revocation of licenses, certificates or documents under 46 U.S.C. 7701 
et seq.; Coast Guard class II civil penalty proceedings under the Clean 
Water Act, 33 U.S.C. 1321(b)(6)(B)(ii), Coast Guard class II penalty 
proceedings under the Comprehensive Environmental Response, 
Compensation and Liability Act, 42 U.S.C. 9609(b); suspension and 
revocation of Certificates of Registry proceedings for Great Lakes 
Pilots pursuant to 46 CFR part 401; National Highway Traffic Safety 
Administration (NHTSA) fuel economy enforcement under 15 U.S.C. 2001 
(49 CFR Part 511); Federal Highway Administration (FHWA) enforcement of 
motor carrier safety and hazardous materials regulations under 49 
U.S.C. 521 and 5123 (49 CFR part 386); the Department's aviation 
economic enforcement proceedings conducted by its Office of Aviation 
Enforcement and Proceedings pursuant to 49 U.S.C. Subtitle VII, 14 CFR 
Chapter II. Also covered are any appeal of a decision made pursuant to 
section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) before 
an agency board of contract appeals as provided in section 8 of that 
Act (41 U.S.C. 607), any hearing conducted under Chapter 38 of title 
31, and the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb 
et seq.
* * * * *
    5. In Sec. 6.7, paragraph (a) is amended by replacing the citation 
``5 U.S.C. 551(3)'' with the citation ``5 U.S.C. 504(b)(1)(B)''; 
paragraph (b)(1) is amended by replacing the words ``1 million'' with 
the words ``2 million''; paragraphs (b((2) and (b)(5) are amended by 
replacing the words ``5 million'' with the words ``7 million''; and 
paragraph (b)(6) is added to read as follows:


Sec. 6.7  Eligibility of applications.

* * * * *
    (b) * * *
    (6) For the purposes of section 6.9(b) eligible applicants include 
small entities as defined in 5 U.S.C. 601.
* * * * *
    6. Section 6.9, is revised to read as follows:


Sec. 6.9  Standards for awards.

    (a) An eligible applicant may receive an award for fees and 
expenses incurred by that party in connection with a decision in favor 
of the applicant in a proceeding covered by this part, unless the 
position of the Department over which the applicant has prevailed was 
substantially justified or special circumstances make the award sought 
unjust. The burden of proof that an award should not be made to an 
eligible applicant is on the Department where it has initiated the 
proceeding. No presumption arises that the Department's position was 
not substantially justified simply because the Department did not 
prevail. Whether or not the position of the Department was 
substantially justified shall be determined on the basis of the 
administrative record, as a whole, in the adversary adjudication for 
which fees and other expenses are sought. The ``position of the 
Department'' means, in

[[Page 28834]]

addition to the position taken by the agency in the adversary 
adjudication, the action or failure to act by the Department upon which 
the adversary adjudication may be based.
    (b) In the context of a Departmental proceeding to enforce a 
party's compliance with a statutory or regulatory requirement, if the 
demand by the Department is substantially in excess of the amount 
awarded to the government pursuant to the decision of the adjudicative 
officer and is unreasonable when compared with such decision, under the 
facts and circumstances of the case, the adjudicative officer shall 
award to an eligible applicant party the fees and expenses related to 
defending against the excessive demand, unless the applicant party has 
committed a willful violation of law or otherwise acted in bad faith, 
or special circumstances make an award unjust. Fees and expenses 
awarded under this paragraph shall be paid only as a consequence of 
appropriations provided in advance. As used in this section, ``demand'' 
means the express demand of the Department which led to the adversary 
adjudication, but does not include a recitation by the Department of 
the maximum statutory penalty (1) in the administrative complaint, or 
(2) elsewhere when accompanied by an express demand for a lesser 
amount.
    (c) The decision of the Department on the application for fees and 
other expenses shall be the final administrative decision under this 
section.
    (d) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the proceeding.


Sec. 6.11  [Amended]

    7. In Sec. 6.11, paragraph (b) is amended by replacing the figure 
``$75.00'' with the figure ``$125.00''.


Sec. 6.25  [Amended]

    8. In Sec. 6.25, paragraph (c) is amended by replacing the words 
``an identify'' with the words ``and identify''.

    Issued this 31st day of May, 1996 at Washington, D.C.
Federico Pena,
Secretary of Transportation.
[FR Doc. 96-14245 Filed 6-5-96; 8:45 am]
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