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purposes of the Act in light of the witnesses, or $24.09 per hour, whichevactual relationship between the affili- er is less. ated entities. In addition, the adminis- (c) In determining the reasonabletrative law judge may determine that ness of the fee sought for an attorney, financial relationships of the appli- agent or expert witness, the adminiscant other than those described in this trative law judge shall consider the paragraph constitute special circum- following: stances that would make an award (1) If the attorney, agent or witness unjust.

is in private practice, his or her cus(g) An applicant that participates in tomary fee for similar services, or, if a proceeding primarily on behalf of an employee of the applicant, the one or more other persons or entities fully allocated cost of the services; that would be ineligible is not itself el- (2) The prevailing rate for similar igible for an award.

services in the community in which (h) An applicant who appears pro se the attorney, agent or witness ordinarin a proceeding is ineligible for award

ily performs services; of attorney fees. However, eligibility (3) The time actually spent in the for other expenses is not affected by

representation of the applicant; pro se representation.

(4) The time reasonably spent in 8 6.9 Standards for awards.

light of the difficulty or complexity of

the issues in the proceeding; and (a) An eligible applicant may receive (5) Such other factors as may bear an award for fees and expenses in

on the value of the services provided. curred in connection with a proceed- (d) The reasonable cost of any study, ing, or in a significant and discrete

analysis, engineering report, test, substantive portion of the proceeding project or similar matter prepared on unless the position of the agency over behalf of a party may be awarded, to which the applicant has prevailed was

the extent that the charge for the substantially justified or special cir- service does not exceed the prevailing cumstances make the award sought

rate for similar services, and the study unjust. The burden of proof that an

or other matter was necessary for award should not be made to an eligi

preparation of the applicant's case. ble prevailing applicant is on the De

(e) Fees may be awarded only for partment of Transportation, where it

work performed after designation of a has initiated the proceeding, or on the

proceeding. appropriate operating administration, such as Coast Guard. No presumption 8 6.13 Delegations of authority. arises that the agency's position was

The Secretary of Transportation delnot substantially justified simply be

egates to the head of each operating cause the agency did not prevail. (b) An award will be reduced or

administration of this Department the denied if the applicant has unduly or

authority to take final action, other unreasonably protracted the proceed

than rulemaking, on matters pertaining to the Act in actions that require

section 554 proceedings. The head of 86.11 Allowable fees and expenses.

each operating administration may re

delegate this authority. (a) Awards will be based on rates customarily charged by persons engaged in the business of acting as at

Subpart B-Information Required torneys, agents or expert witnesses.

from Applicants (b) No award for the fee of an attorney or agent under these rules may

8 6.17 Contents of application. exceed $75.00 per hour. This amount (a) An application for an award of shall include all other expenses in- fees and expenses under the Act shall curred by the attorney or agent in identify the applicant and the proconnection with the case. No award to ceeding for which an award is sought. compensate an expert witness may The application shall show that the exceed the highest market rate at applicant has prevailed and identify which the Department pays expert the position of an agency or agencies

ing.

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 omit 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 is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 114j(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 sh 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.

8 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.

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at which fees and other expenses were (b) If agency counsel and applicant computed and describing the specific believe that they can reach a' settleservices performed.

ment concerning the award, the (1) The affidavit shall state the serv- agency counsel may file a statement of ices performed. In order to establish intent to negotiate. The filing of such the hourly rate, the affidavit shall a statement shall extend the time for state the hourly rate which is billed filing an answer an additional 30 days. and paid by the majority of clients (c) The answer shall explain in during the relevant time periods.

detail any objections to the award re(2) If no hourly rate is paid by the quested an identify the facts relied on majority of clients because, for in- in support of the Department's posistance, the attorney or agent repre- tion. If the answer is based on any alsents most clients on a contingency leged facts not already in the record of basis, the attorney or agent shall pro- the proceeding, the Department shall vide information about two attorneys include with the answer either supor agents with similar experience, who porting affidavits or a request for furperform similar work, stating their ther proceedings under $ 6.3. hourly rate. (c) The documentation shall also in

8 6.27 Comments by other parties. clude a description of any expenses for Any party to a proceeding, other which reimbursement is sought and a than the applicant and the Departstatement of the amounts paid and ment may file comments on an applipayable by the applicant or by any cation within 30 days after it is served other person or entity for the services or on an answer within 15 days after it provided.

is served. A commenting party may (d) The administrative law judge not participate further in proceedings may require the applicant to provide on the application. vouchers, receipts, or other substantiation for any expenses claimed.

8 6.29 Settlement. (e) The administrative law judge The applicant and agency counsel may, within his or her discretion, may agree on a proposed settlement of make a determination as to whether a the award before final action on the study, conducted by the applicant, was application, either in connection with necessary to the preparation of the ap- a settlement of the underlying proplicant's case.

ceeding, or after the underlying pro

ceeding has been concluded, in accordSubpart C-Procedures for

ance with the agency's standard settleConsidering Applications

ment procedure. If a prevailing party

and the agency counsel agree on a pro8 6.23 Filing and service of documents. posed settlement of an award before Any application for an award or

an application has been filed the ap

plication shall be filed with the proother pleading or document related to an application shall be filed and

posed settlement. served on all parties to the proceeding

8 6.31 Further proceedings. in the same manner as other pleadings in the proceeding.

(a) Ordinarily, the determination of

an award will be made on the basis of 8 6.25 Answer to application.

the written record. However, on re

quest of either the applicant or agency (a) Within 30 calendar days after service of an application, the agency

counsel, or on his or her own initia

tive, the administrative law judge may counsel may file an answer to the ap

order further proceedings, such as an plication. Unless the agency counsel

informal conference, oral argument, requests an extension of time for filing

additional written submissions or an or files a statement of intent to negotiate under paragraph (b) of this sec

evidentiary hearing. tion, failure to file an answer within Such further proceedings shall be held the 30-day period may be treated as a only when necessary for full and fair consent to the award request.

resolution of the issues arising from

50-190 0-92-3

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

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. 8 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.

Subpart A-Applicability and Policy Sec. 7.1 Applicability. 7.3 Policy. 7.5 Definitions.

Subpart B-General

7.11 Administration of part. 7.13 Records containing both available and

unavailable information. 7.15 Protection of records.

Subpart C-Time Limits

7.21 Initial determination. 7.23 Final determination. 7.25 Extension.

Subpart D-Publication in the Federal Register 7.31 Applicability. 7.33 Publication required.

8 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.

Subpart E-Availability of Opinions, Orders,

Staff Manuals, Statements of Policy and

Interpretations: Indices 7.41 Applicability. 7.43 Deletion of identifying detail. 7.45 Access to materials and indices. 7.47 Index of public materials. 7.49 Copies.

8 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).

Subpart F-Availability of Reasonably

Described Records 7.51 Applicability. 7.53 Public availability of records. 7.55 Request for records of concern to

more than one Government organiza

tion. 7.57 Request for business information sub

mitted by a private party.

8 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

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Sec. 7.67 Records exempted from disclosure by

statute. 7.69 Trade secrets and commercial or fi

nancial information obtained from a

person and privileged or confidential. 7.71 Intragovernmental exchanges. 7.73 Protection of personal privacy. 7.75 Records or information compiled for

law enforcement purposes. 7.77 Reports of financial institutions. 7.79 Geological and geophysical informa

tion.

Subpart H-Procedures for Appealing Deci

sions Not To Disclose Records And/Or Waive Fees

7.81 General.

Subpart 1-Fees

(b) Subpart G of this part describes the records that are not required to be disclosed under this part.

(c) Appendices A through J of this part:

(1) Describe the places and the times at which records will be available for inspection and copying;

(2) Define the kinds of records located at each facility;

(3) Identify the location of the indices to such records; and

(4) Identify the officials having authority to deny requests for disclosure of records under this part.

(d) The Office of the General Counsel may amend appendix A to this part to reflect any changes in the items covered by that appendix. The head of an operating element concerned may amend the appendix applicable to that element to reflect any changes in the items covered by that appendix.

(e) This part applies only to records that exist as of the date of receipt of the request by the appropriate office, in accordance with $ 7.53 of this part. The Department is not required to create, compile or procure a record solely for the purpose of making it available under this part.

(f) Indices are maintained to reflect all records subject to subpart E of this part, and are available for public inspection and copying as provided in appendices A through J to this part. (53 FR 30268, Aug. 11, 1988, as amended by Amdt. 7-1, 54 FR 10010, Mar. 9, 1989)

7.91 General. 7.93 Payment of fees. 7.95 Fee schedule. 7.97 Services performed without charge or

at a reduced charge. 7.99 Transcripts. 7.101 Copyrighted material. 7.103 Alternative sources of information. APPENDIX A TO PART 7-OFFICE OF THE SEC

RETARY APPENDIX B TO PART 7-UNITED STATES

COAST GUARD APPENDIX C TO PART 7-FEDERAL AVIATION

ADMINISTRATION APPENDIX D TO PART 7-FEDERAL HIGHWAY

ADMINISTRATION APPENDIX E TO PART 7-FEDERAL RAILROAD

ADMINISTRATION APPENDIX F TO PART 7-NATIONAL HIGHWAY

TRAFFIC SAFETY ADMINISTRATION APPENDIX G TO PART 7-URBAN MASS TRANS

PORTATION ADMINISTRATION APPENDIX H TO PART 7-SAINT LAWRENCE

SEAWAY DEVELOPMENT CORPORATION APPENDIX I TO PART 7-MARITIME ADMINIS

TRATION APPENDIX J TO PART 7-RESEARCH AND SPE

CIAL PROGRAMS ADMINISTRATION AUTHORITY: 5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322.

SOURCE: 53 FR 30268, Aug. 11, 1988, unless otherwise noted.

8 7.3 Policy.

In implementing section 552 of title 5, United States Code, it is the policy of the Department of Transportation to make information available to the public to the greatest extent possible in keeping with the spirit of that section. Therefore, all records of the Department, except those that the Department specifically determines must not be disclosed in the interest of national defense or foreign policy, for the protection of private rights and commercial interests or for the efficient conduct of public business to the extent permitted by the Freedom of Information Act, are declared to be available for public inspection and copying as provided in this part. Each

Subpart A-Applicability and Policy

87.1 Applicability.

(a) This part implements section 552 of title 5, United States Code, and prescribes rules governing the availability to the public of records of the Department of Transportation.

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