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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, OI’ (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.
[62 FR 19234, Apr. 21, 1997]
§ 6.11 Allowable fees and expenses.
(a) Awards will be based on rates Customarily charged by persons engaged in the business of acting a S attorneyS, agents or expert witnesses. (b) No award for the fee of an attorney or agent under these rules may exceed $125.00 per hour. This amount shall include all other expenses incurred by the attorney or agent in Connection with the case. No award to compensate an expert witness may exceed the highest market rate at which the Department pays expert Witnesses, or $24.09 per hour, whichever is less. (c) In determining the reasonableness of the fee Sought for an attorney, agent or expert witness, the administrative law judge shall consider the following: (1) If the attorney, agent Or witness is in private practice, his or her Customary fee for similar services, or, if an employee of the applicant, the fully allocated cost of the services; (2) The prevailing rate for similar services in the community in which the attorney, agent or witness ordinarily performs services; (3) The time actually spent in the representation of the applicant; (4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and (5) Such other factors as may bear on the value of the services provided. (d) The reasonable cost of any study, analysis, engineering report, test, project or similar matter prepared on behalf of a party may be awarded, to the extent that the charge for the Service does not exceed the prevailing rate for similar services, and the study or
other matter was necessary for preparation of the applicant’s case.
(e) Fees may be awarded only for work performed after designation of a proceeding.
[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]
$6.13 Delegations of authority.
The Secretary of Transportation delegates to the head of each operating administration of this Department the authority to take final action, other than rulemaking, on matters pertaining to the Act in actions that require section 554 proceedings. The head of each Operating administration may redelegate this authority.
Subport B–Information Required from Appliconts
$6.17 Contents of application.
(a) An application for an award of fees and expenses under the Act shall identify the applicant and the proceeding for which an award is sought. The application shall show that the applicant has prevailed and identify the position of an agency or agencies in the proceeding that the applicant alleges was not substantially justified. Unless the applicant is an individual, the application shall also State that it did not have more than 500 employees at the time the proceeding was initiated, giving the number of employees of the applicant and describing briefly the type and purpose of its organization or busineSS.
(b) The application shall also include a Statement that the applicant’s net worth does not exceed $1 million (if an individual) or $5 million (for all other applicants, including their affiliates). However, an applicant may Onit this statement if:
(1) It attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described in Section 501(c)(3) Of the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the Case of a tax-exempt organization not required to obtain a ruling from the Internal Revenue Service on its exempt Status, a Statement that describes the basis for the applicant’s belief that it qualifies under such section; or
(2) It states that it is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 114.j(a)).
(c) The application shall state the amount of fees and expenses for which an award is sought.
(d) The application may also include any other matters that the applicant wishes this agency to consider in determining whether and in what amount an award should be made.
(e) The application shall be signed by the applicant or an authorized officer or attorney of the applicant. It shall also contain or be accompanied by a written verification under Oath or under penalty of perjury that the information provided in the application is true and correct.
(f) If the applicant is a partnership, Corporation, association, or Organization, or a sole owner of an unincorporated business, the application shall State that it did not have more than 500 employees at the time the proceeding was initiated, giving the number of its employees and describing briefly the type and purpose of its organization or business.
§ 6.19 Net worth exhibit.
(a) Each applicant except a qualified tax-exempt Organization Or COOperative association must provide with its application a detailed exhibit showing the net worth of the applicant and any affiliates (as defined in this part) when the proceeding was designated. If any individual, corporation, or other entity directly or indirectly controls or owns a majority of the voting shares or Other interest of the applicant, or if the applicant directly or indirectly owns or controls a majority of the voting shares or other interest of any corporation or other entity, the exhibit must include a showing of the net worth of all such affiliates or of the applicant including the affiliates. The exhibit may be in any form convenient to the applicant that provides full disclosure of the applicant’s and its affiliates’ assets and liabilities and is sufficient to determine whether the applicant qualifies under the standards in this subpart. The administrative law judge may require an applicant to file
additional information to determine its eligibility for an award.
(b) The net worth exhibit shall deScribe any transfers of assets from, or obligations incurred by, the applicant Or any affiliate, occurring in the oneyear period prior to the date on which the proceeding was initiated, that reduced the net worth of the applicant and its affiliates below the applicable net worth ceiling. If there were no such transactions, the applicant shall so State.
(c) The net worth exhibit shall be included in the public record of the proceeding.
$6.21 Documentation of fees and expenses.
(a) The application shall be accompanied by full documentation of the fees and expenses, including the cost of any study, analysis, engineering report, test, project or similar matter, for which an award is sought. (b) The documentation shall include an affidavit from any attorney, agent, Or expert witness representing or appearing in behalf of the party, stating the actual time expended and the rate at which fees and other expenses were computed and describing the specific services performed. (1) The affidavit shall state the Services performed. In Order to establish the hourly rate, the affidavit shall State the hourly rate which is billed and paid by the majority of clients during the relevant time periods. (2) If no hourly rate is paid by the majority of clients because, for instance, the attorney or agent represents most clients on a contingency basis, the attorney or agent shall provide information about two attorneys or agents with similar experience, who perform Similar work, stating their hourly rate. (c) The documentation shall also include a description of any expenses for which reimbursement is sought and a Statement of the amounts paid and payable by the applicant or by any other person or entity for the services provided. (d) The administrative law judge may require the applicant to provide vouchers, receipts, Or Other Substantiation for any expenses claimed.
(e) The administrative law judge may, within his or her discretion, make a determination as to whether a study, conducted by the applicant, was necessary to the preparation of the applicant's Case.
Subport C–Procedures for Considering Applications
$6.23 Filing and service of documents.
Any application for an award or other pleading or document related to an application shall be filed and Served on all parties to the proceeding in the same manner as other pleadings in the proceeding.
$6.25 Answer to application.
(a) Within 30 calendar days after service of an application, the agency counsel may file an answer to the application. Unless the agency counsel requests an extension of time for filing or files a statement of intent to negotiate under paragraph (b) of this Section, failure to file an answer within the 30-day period may be treated as a consent to the award request.
(b) If agency counsel and applicant believe that they can reach a settlement concerning the award, the agency counsel may file a statement of intent to negotiate. The filing of Such a statement shall extend the time for filing an answer an additional 30 days.
(c) The answer shall explain in detail any objections to the award requested and identify the facts relied on in Support of the Department’s position. If the answer is based on any alleged facts not already in the record of the proceeding, the Department shall include with the answer either supporting affidavits or a request for further proceedings under §6.3.
[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]
$6.27 Comments by other parties.
Any party to a proceeding, other than the applicant and the Department 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 proceedings on the application.
The applicant and agency counsel may agree on a proposed settlement of the award before final action on the application, either in Connection with a settlement of the underlying proceeding, or after the underlying proceeding has been concluded, in accordance with the agency’s Standard settlement proCedure. If a prevailing party and the agency counsel agree on a proposed settlement of an award before an application has been filed the application shall be filed with the proposed settlement.
$6.31 Further proceedings.
(a) Ordinarily, the determination of an award will be made on the basis of the written record. However, on request of either the applicant or agency Counsel, or on his or her own initiative, the administrative law judge may order further proceedings, such as an informal conference, oral argument, additional written Submissions Or an evidentiary hearing.
Such further proceedings shall be held only when necessary for full and fair resolution of the issues arising from the application, and shall be conducted as promptly as possible. (b) A request that the administrative law judge Order further proceedings under this section shall specifically identify the information Sought Or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues.
§ 6.33 Decision.
The administrative law judge shall issue an initial decision on the application as SOOn as possible after completion of proceedings on the application. The decision shall also include, if at issue, findings On whether the Department’s position was substantially justified, whether the applicant unduly protracted the proceedings, Or whether Special circumstances make an award unjust. If the applicant has sought an award against more than one agency, the decision shall allocate responsibility for payment or any award made among the agencies, and shall explain the reasons for the allocation made.
$6.35 Agency review.
Where Department review of the underlying decision is permitted, either the applicant Or agency Counsel, may Seek review of the initial decision. On the fee application, Or the Department may decide to review the decision on its own initiative. If neither the applicant nor the agency Counsel Seeks review within 30 days after the decision is issued, it Shall become final.
§ 6.37 Judicial review.
Judicial review of final agency deciSions on awards may be Sought as provided in 5 U.S.C. 504(c)(2).
$6.39 Payment of award.
An applicant Seeking payment of an award from the Department of Transportation or any of its operating administrations under this part Shall Submit a copy of the Department of Transportation’s or any of its operating administration’s final decisions granting the award, accompanied by a Statement that the applicant will not seek review of the decision in the United States courts. The copy of the decision and the Statement Should be Submitted to the head of the affected Operating administration or the Secretary Of Transportation, where the Department of Transportation, Office of the Secretary, has initiated the proceedings.
PART 7–PUBLIC AVAILABILITY OF INFORMATION
Subport A–General Provisions
Sec. 7.1 General. 7.2 Definitions.
Subport B-information Required to be Mode Public by DOT
7.3 Publication in the FEDERAL REGISTER. 7.4 Publication required. 7.5 Availability of Opinions, Orders, Staff manuals, statements of policy, and interpretations and indices. 7.6 Deletion of identifying detail. 7.7 Access to materials and indices. 7.8 Copies. 7.9 Protection of records. 7.10 Public records.
(a) This part inplements 5 U.S.C. 552, and prescribes rules governing the availability to the public of DOT records. Many documents are made available to the public for inspection and copying through DOT’s Primary Electronic Access Facility and public record unit, locations that are discussed in Subpart B of this part, which contains the DOT regulations concerning the availability to the public of opinions issued in the adjudication of cases, policy issuances, administrative manuals, and other information made available to the public, without need for a Specific request.
(b) Subpart C of this part describes the records that are not required to be disclosed on DOT’s own action under this part, but that may be available upon request under FOIA.
(c) Indices are maintained to reflect all records subject to subpart B of this part, and are available for public inspection and copying as provided in subpart B.
As used in this part— Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552, as amended. Administrator means the head of each DOT component of DOT and includes the Commandant of the Coast Guard, the Inspector General, and the Director of the Bureau of Transportation Statistics. Concurrence means that the approval of the person being consulted is required in order for the subject action to be taken. Consultation means that the approval of the person being consulted is not required in order for the subject action to be taken. Department or DOT means the Department of Transportation, including the Office of the Secretary of Transportation, the Office of the Inspector General, and the following DOT components, all of which may be referred to as DOT COmponents. Means Of Contacting each of these DOT components appear in § 7.15. This definition specially excludes the Surface Transportation Board, which has its own FOIA regulations (49 CFR Part 1001): (1) United States Coast Guard, (2) Federal Aviation Administration, (3) Federal Highway Administration, (4) Federal Railroad Administration, (5) National Highway Traffic Safety Administration, (6) Federal Transit Administration, (7) Saint Lawrence Seaway Development Corporation, (8) Maritime Administration, (9) Research and Special Programs Administration, and (10) Bureau of Transportation Statistics. Primary Electronic Access Facility means the electronic docket facility in the DOT Headquarters Building, 400 7th Street, S.W., Washington, D.C. 20590.
Reading room records are those records required to be made available to the public under 5 U.S.C. 552(a)(2) as described in $7.5 of Subpart B of this part. These records are made available through DOT’s Primary Electronic Access Facility. Other records may also be made available at DOT’s discretion at DOT inspection facilities, including DOT’s Primary Electronic Access Facility. Record includes any writing, drawing, map, recording, tape, film, photograph, or other documentary material by which information is preserved. The term also includes any such documentary material stored by computer. Responsible DOT official means the head of the DOT component concerned, or the General Counsel or the Inspector General, as the case may be, or the designee of any of them, authorized to take an action under this part. Secretary means the Secretary of Transportation or any person to whom the Secretary has delegated authority in the matter concerned.
Subport B–Information Required To Be Mode Public by DOT
$7.3 Publication in the Federal Register.
This section implements 5 U.S.C. 552(a)(1), and prescribes rules governing publication in the FEDERAL REGISTER of the following: (a) Descriptions of DOT’s organization, including its DOT components and the established places at which, the officers from whom, and the methods by which, the public may secure information and make submittals or obtain decisions; (b) Statements of the general course and methods by which DOT's functions are channeled and determined, including the nature and requirements of all formal and informal procedures available; (c) Rules of procedure, descriptions of forms available or the places at Which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations; (d) Substantive rules of general applicability adopted as authorized by law and statements of general policy or