Imágenes de páginas

portation Administrator, the National the user, an appropriate legend will be Highway Traffic Safety Administra prescribed by the Department for tor, the Maritime Administrator, the prominent display in connection with Research and Special Programs Ad- the permitted use. ministrator, the Inspector General, (f) Falsely making, forging, counterand the Chairman, Board of Contract feiting, mutilating, or altering the Appeals.

Seal, or knowingly using or possessing (b) The officers named in paragraph with fraudulent intent any altered (a) of this section may redelegate, and Seal is punishable under section 506 of authorize redelegations of, this au- title 18, United States Code. thority. (Amdt. 3-3, 45 FR 75666, Nov. 17, 1980, as

PART 5-RULEMAKING PROCEDURES amended by Amdt. 3-4, 46 FR 42272, Aug. 20, 1981)

Subpart A-General 8 3.5 Use of the Seal.

Sec. (a) The Seal is the official emblem

5.1 Applicability.

5.3 Initiation of rulemaking. of the Department of Transportation

5.5 Participation by interested persons. and its use is therefore permitted only

5.7 Regulatory docket. as provided in this part. (b) Use by any person or organiza

Subpart B-Petitions for Rulemaking or tion outside of the Department may

Exemptions be made only with the Department's prior written approval.

5.11 Filing of petitions. (c) Requests by any person or orga

5.13 Processing of petitions. nization outside of the Department for permission to use the Seal must be

Subpart C-Procedures made in writing to the Assistant Secre

5.21 General. tary for Administration, 400 Seventh

5.23 Contents of notices. St., SW., Washington, DC 20590, and 5.25 Petitions for extension of time to com. must specify, in detail, the exact use ment. to be made. Any permission granted 5.27 Consideration of comments received. applies only to the specific use for 5.29 Additional rulemaking proceedings. which it was granted and is not to be 5.31 Hearings. construed as permission for any other

5.33 Adoption of final rules. use.

APPENDIX A TO PART 5 (d) Use of the Seal shall be essential

AUTHORITY: Sec. 9, 80 Stat. 944 (49 U.S.C. ly for informational purposes. The

1657). Seal may not be used on any article or

SOURCE: 32 FR 10363, July 14, 1967, unless in any manner which may discredit

otherwise noted. the Seal or reflect unfavorably upon the Department or which implies Departmental endorsement of commer

Subpart A-General cial products or services, or of the

85.1 Applicability. user's policies or activities. Specifically, permission may not be granted (a) This part prescribes general ruleunder this section for use:

making procedures that apply to the (1) On souvenir or novelty items of

issue, amendment, and repeal of rules an expendable nature;

of the Secretary of Transportation. It (2) On toys, gifts, or premiums;

does not apply to rules issued by the (3) As a letterhead design;

National Transportation Safety Board, (4) On menus, matchbook covers, U.S. Coast Guard, Federal Aviation covers, calendars, or similar items; Administration, Federal Highway Ad

(5) To adorn civilian clothing; or ministration, Federal Railroad Admin

(6) On athletic clothing or equip- istration, Urban Mass Transportation ment.

Administration, National Highway (e) Where necessary to avoid any Traffic Safety Administration, or St. prohibited implication or confusion as Lawrence Seaway Development Corpoto the Department's association with ration.

(b) For the purposes of this part, Secretary means the Secretary of Transportation or the Under Secretary of Transportation, or any of the following to whom the Secretary has delegated authority to conduct rulemaking proceedings:

(1) Any Assistant Secretary.

(2) The General Counsel. Any of these officers may redelegate that authority to the head of any office who reports to him.

(c) Records relating to rule-making proceedings are available for inspection as provided in part 7 of this subtitle.

(32 FR 10363, July 14, 1967, as amended by Amdt. 5-2, 35 FR 5331, Mar. 31, 1970; Amdt. 5-3, 36 FR 430, Jan. 13, 1971)

Subpart B-Petitions for Rulemaking

or Exemptions 85.11 Filing of petitions.

(a) Any person may petition the Secretary to issue, amend, or repeal a rule, or for a permanent or temporary exemption from any rule.

(b) Each petition filed under this section must:

(1) Be submitted in duplicate to the Docket Clerk, Office of the General Counsel, Department of Transportation, Washington, DC 20590;

(2) Set forth the text or substance of the rule or amendment proposed, or of the rule from which the exemption is sought, or specify the rule that petitioner seeks to have repealed, as the case may be;

(3) Explain the interest of the petitioner in the action requested including, in the case of a petition for an exemption, the nature and extent of the relief sought and a description of the persons to be covered by the exemption;

(4) Contain any information and arguments available to the petitioner to support the action sought; and

(5) In the case of a petition for exemption, unless good cause is shown in that petition, be submitted at least 60 days before the proposed effective date of the exemption.

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8 5.7 Regulatory docket.

(a) Records of the Office of the Secretary of Transportation concerning rule-making actions, including notices of proposed rule making, comments received in response to those notices, petitions for rule making or exemption, petitions for rehearing or reconsideration, grants and denials of exemptions, denials of petitions for rule making, and final rules are maintained in current docket form in the Office of the General Counsel.

(b) Any person may examine any docketed material at that office and may obtain a copy of any docketed material upon payment of the prescribed fee.

8 5.13 Processing of petitions.

(a) General. Each petition received under $ 5.11 of this part is referred to the head of the office responsible for the subject matter of that petition. No public hearing, argument, or other proceeding is held directly on a petition before its disposition under this section.

(b) Grants. If the Secretary determines that the petition contains adequate justification, he initiates rulemaking action under subpart C of this part or grants the exemption, as the case may be.

(c) Denials. If the Secretary determines that the petition does not justify initiating rule-making action or granting the exemption, he denies the petition.

(d) Notification. Whenever the Secretary determines that a petition should be granted or denied, the office concerned and the Office of the General Counsel prepare a notice of that grant or denial for issuance to the petitioner, and the Secretary issues it to the petitioner.

Subpart C-Procedures

85.21 General.

(a) Unless the Secretary finds, for good cause, that notice is impractical, unnecessary, or contrary to the public interest, a notice of proposed rule making is issued and interested persons are invited to participate in the rulemaking proceedings with respect to each substantive rule.

(b) Unless the Secretary determines that notice and public rulemaking proceedings are necessary or desirable, interpretive rules, general statements of policy, and rules relating to organization, procedure, or practice are prescribed as final without notice or other public rulemaking proceedings.

(c) In his discretion, the Secretary may invite interested persons to participate in the rulemaking proceedings described in g 5.29 of this subpart.

85.25 Petitions for extension of time to

comment. (a) Any person may petition the Secretary for an extension of time to submit comments in response to a notice of proposed rulemaking. The petition must be submitted in duplicate not later than 3 days before expiration of the time stated in the notice. The filing of the petition does not automatically extend the time for petitioner's comments.

(b) The Secretary grants the petition only if the petitioner shows a substantive interest in the proposed rule and good cause for the extension, and if the extension is in the public interest. If an extension is granted, it is granted as to all persons and is published in the FEDERAL REGISTER.

8 5.27 Consideration of comments re

ceived. All timely comments are considered before final action is taken on a rulemaking proposal. Late filed comments may be considered so far as possible without incurring additional expense or delay.

85.29 Additional rulemaking proceedings.

The Secretary may initiate any further rulemaking proceedings that he finds necessary or desirable. For example, he may invite interested persons to present oral arguments, participate in conferences, appear at informal hearings, or participate in any other proceeding.

8 5.23 Contents of notices.

(a) Each notice of proposed rulemaking is published in the FEDERAL REGISTER, unless all persons subject to it are named and are personally served with a copy of it.

(b) Each notice, whether published in the FEDERAL REGISTER or personally served, includes:

(1) A statement of the time, place, and nature of the proposed rulemaking proceeding;

(2) A reference to the authority under which it is issued;

(3) A description of the subjects or issues involved or the substance or terms of the proposed rule;

(4) A statement of the time within which written comments must be submitted and the required number of copies; and

(5) A statement of how and to what extent interested persons may participate in the proceeding.

8 5.31 Hearings.

(a) Sections 556 and 557 of title 5, United States Code, do not apply to hearings held under this part. As a fact-finding proceeding, each hearing is nonadversary and there are no formal pleadings or adverse parties. Any rule issued in a case in which a hearing is held is not necessarily based exclusively on the record of the hearing.

(b) The Secretary designates a representative to conduct any hearing held under this part. The General Counsel designates a member of his staff to serve as legal officer at the hearing.

Subpart C-Procedures for Considering


8 5.33 Adoption of final rules.

Final rules are prepared by representatives of the office concerned and the Office of the General Counsel. The rule is then submitted to the Secretary for his consideration. If the Secretary adopts the rule, it is published in the FEDERAL REGISTER, unless all persons subject to it are named and are personally served with a copy of it.

6.23 Filing and service of documents.
6.25 Answer to application.
6.27 Comments by other parties.
6.29 Settlement.
6.31 Further proceedings.
6.33 Decision.
6.35 Agency review.
6.37 Judicial review.
6.39 Payment of award.

AUTHORITY: Pub. L. 96-481, 94 Stat. 2325.

SOURCE: 48 FR 1070, Jan. 10, 1983, unless otherwise noted.


Subpart A-General Provisions

Pursuant to $ 5.1(b), the following officials of the Office of the Secretary of Transportation are authorized to conduct rulemaking proceedings under this part, as specified in this appendix:

(1) The General Counsel is authorized to conduct all rule-making proceedings, except the issuance of final rules, under the Act of March 19, 1918, ch. 24, as amended (15 U.S.C. 261-264); the Uniform Time Act of 1966 (80 Stat. 107, 15 U.S.C. 260-267); and section 6(e)(5) of the Department of Transportation Act (80 Stat. 939, 49 U.S.C. 1655 (e)(5)).

(2) The General Counsel is authorized to determine the practicability of applying the standard time of any standard time zone to the movements of any common carrier engaged in interstate or foreign commerce, and, under section 2 of the Act of March 19, 1918, ch. 24, as amended (15 U.S.C. 262), to issue operating exceptions in any case in which he determines that it is impractical to apply the standard time. (Amdt. 5-1, 32 FR 11473, Aug. 9, 1967)

8 6.1 Purpose of these rules.

The Equal Access to Justice Act, 5 U.S.C. 504 (called “the Act” in this part), 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 government agencies, such as the Department of Transportation or any of its operating administrations. 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 rules in this part 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 this agency will use to make them. The use of the term “Department”, in this rule, will be understood to mean the Department of Transportation or any of its operating administrations, unless otherwise specified. The term "agency counsel” will be understood to mean counsel for the Department of Transportation or any of its operating administrations.



Subpart A-General Provisions

Sec. 6.1 Purpose of these rules. 6.3 When the Act applies. 6.5 Proceedings covered. 6.7 Eligibility of applications. 6.9 Standards for awards. 6.11 Allowable fees and expenses. 6.13 Delegations of authority.

Subpart B-Information Required from


8 6.3 When the Act applies.

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,

6.17 Contents of application. 6.19 Net worth exhibit. 6.21 Documentation of fees and expenses.

1981, if final agency action has not been taken before that date, and proceedings pending on September 30, 1984.

8 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 generally covered include: Coast Guard suspension or revocation of licenses, certificates or documents under 46 U.S.C. 239; 46 CFR part 5; National Highway Traffic Safety Administration (NHTSA) fuel economy enforcement under 15 U.S.C. 2001; (49 CFR part 511); Federal Highway Administration (FHWA) driver qualification and compliance order proceedings under 49 U.S.C. 655; (49 CFR part 386).

(b) If a proceeding includes both matters covered by the Act and matters specifically excluded from coverage, any award made will include only fees and expenses related to covered issues.

(1) An individual with a net worth of not more than $1 million;

(2) The sole owner of an unincorporated business who has a net worth of not more than $5 million, including both personal and business interests, and not more than 500 employees.

(3) A charitable or other tax-exempt organization as described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3) with not more than 500 employees;

(4) A cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)) with a net worth of not more than $5 million and not more than 500 employees.

(5) Any other partnership, corporation, association, or public or private organization with a net worth of not more than $5 million and not more than 500 employees.

(c) For the purpose of eligibility, the net worth and number of employees of an applicant shall be determined as of the date the proceeding was designated.

(d) An applicant who owns an unincorporated business will be considered an “individual” rather than a “sole owner of an unincorporated business" if the issues on which the applicant prevails are related primarily to personal interests rather than to business interests.

(e) The number of employees of an applicant includes all persons who reg. ularly perform services for remuneration for the applicant, under the applicant's direction and control. Part-time employees shall be included on a proportional basis.

(f) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility. 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 any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest, will be considered an affiliate for purposes of this part, unless the administrative law judge determines that such treatment would be unjust and contrary to the

8 6.7 Eligibility of applications.

(a) To be eligible for an award of attorney fees and other expenses under the Act, the applicant must be a party to an adversary adjudication for which it seeks an award. The term "party" is defined in 5 U.S.C. 551(3). The applicant must show that it meets all conditions of eligibility set out in this subpart and in paragraph (b) of this section.

(b) The types of eligible applicants are as follows:

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