1、592 49 CFR Ch. VIII (10110 Edition) Pt. 826 (2) Memoranda stating the substance of all such oral communication; and (3) All written responses, and memo-randa stating the substance of all oral responses, to materials described in paragraphs (d) (1) and (2) of this sec-tion. (e) Upon receipt of a comm
2、unication knowingly made or caused to be made in violation of paragraph (c) of this sec-tion, the Board may, to the extent con-sistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his or her interest in the proceeding should not be dism
3、issed, denied, dis-regarded, or otherwise adversely af-fected on account of such violation. (f) The Board may, to the extent con-sistent with the interests of justice and the policy of the underlying statutes administered by the Board, consider a violation of this section sufficient grounds for a de
4、cision adverse to a party who has knowingly committed such violation or knowingly caused such violation to occur. (Authority: Sec. 4, Government in the Sun-shine Act, Pub. L. 94409, amending 5 U.S.C. 556 (d) and 5 U.S.C. 557; Independent Safety Board Act of 1974, Pub. L. 93633, 88 Stat. 2166 (49 U.S
5、.C. 1901 et seq.) 42 FR 21614, Apr. 28, 1977 PART 826RULES IMPLEMENTING THE EQUAL ACCESS TO JUSTICE ACT OF 1980 Subpart AGeneral Provisions Sec. 826.1 Purpose of these rules. 826.2 When the Act applies. 826.3 Proceedings covered. 826.4 Eligibility of applicants. 826.5 Standards for awards. 826.6 All
6、owable fees and expenses. 826.7 Rulemaking on maximum rates for at-torney fees. 826.8 Awards against the Federal Aviation Administration. Subpart BInformation Required From Applicants 826.21 Contents of application. 826.22 Net worth exhibit. 826.23 Documentation of fees and expenses. 826.24 When an
7、application may be filed. Subpart CProcedures for Considering Applications 826.31 Filing and service of documents and general procedures. 826.32 Answer to application. 826.33 Reply. 826.34 Comments by other parties. 826.35 Settlement. 826.36 Further proceedings. 826.37 Decision. 826.38 Board review.
8、 826.39 Judicial review. 826.40 Payment of award. AUTHORITY: Section 203(a)(1) Pub. L. 9980, 99 Stat. 186 (5 U.S.C. 504). SOURCE: 46 FR 48209, Oct. 1, 1981, unless otherwise noted. Subpart AGeneral Provisions 826.1 Purpose of these rules. The Equal Access to Justice Act, 5 U.S.C. 504 (the Act), prov
9、ides for the award of attorney fees and other ex-penses to eligible individuals and enti-ties who are parties to certain adminis-trative proceedings (adversary adju-dications) before the National Trans-portation Safety Board (Board). An eli-gible party may receive an award when it prevails over the
10、Federal Aviation Administration (FAA), unless the Gov-ernment agencys position in the pro-ceeding 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
11、apply for awards, and the procedures and standards that this Board will use to make them. As used hereinafter, the term agency applies to the FAA. 826.2 When the Act applies. The Act applies to any adversary ad-judication identified in 826.3 as cov-ered under the Act. 59 FR 30531, June 14, 1994 826.
12、3 Proceedings covered. (a) The Act applies to certain adver-sary adjudications conducted by the Board. These are adjudications under 5 U.S.C. 554 in which the position of the FAA is presented by an attorney or VerDate Mar2010 10:10 Dec 13, 2010 Jkt 220218 PO 00000 Frm 00602 Fmt 8010 Sfmt 8010 Y:SGML
13、220218.XXX 220218wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-593 National Transportation Safety Board 826.4 other representative who enters an ap-pearance and participates in the pro-ceedings. Proceedings to gran
14、t or renew certificates or documents, here-after referred to as licenses, are ex-cluded, but proceedings to modify, sus-pend, or revoke licenses or to impose a civil penalty on a flight engineer, me-chanic, pilot, or repairman (or person acting in that capacity) are covered if they are otherwise adv
15、ersary adju-dications. For the Board, the type of proceeding covered includes (but may not be limited to) aviation enforce-ment cases appealed to the Board under sections 501, 609, 611 and 901 of the Federal Aviation Act (49 U.S.C. 44101 et seq., 4472044711, 44715, 46301). (b) The Board may also des
16、ignate a proceeding not listed in paragraph (a) as an adversary adjudication for pur-poses of the Act by so stating in an order initiating the proceeding or des-ignating the matter for hearing. The Boards failure to designate a pro-ceeding as an adversary adjudication shall not preclude the filing o
17、f an ap-plication by a party who believes the proceeding is covered by the Act; whether the procedure is covered will then be an issue for resolution in pro-ceedings on the application. (c) If a proceeding includes both mat-ters covered by the Act and matters specifically excluded from coverage, any
18、 award made will include only fees and expenses related to covered issues. 46 FR 48209, Oct. 1, 1981, as amended at 59 FR 59054, Nov. 15, 1994 826.4 Eligibility of applicants. (a) To be eligible for an award of at-torney fees and other expenses under the Act, the applicant must be a party to the adv
19、ersary 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 subpart B. (b) The types of eligible applicants are as follows: (1) An individual with a net worth of not
20、more than $2 million; (2) The sole owner of an unincor-porated business who has a net worth of not more than $7 million, including both personal and business interests, and not more than 500 employees; (3) A charitable or other tax-exempt organization described in section 501(c)(3) of the Internal R
21、evenue Code (26 U.S.C. 501(c)(3) with not more than 500 employees; (4) A cooperative association as de-fined in section 15(a) of the Agricul-tural Marketing Act (12 U.S.C. 1141j(a) with not more than 500 employees; and (5) Any other partnership, corpora-tion, association, or public or private organi
22、zation with a net worth of not more than $7 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 initiated. (d) An applicant who owns an unin-corporated business will b
23、e considered an individual rather than a sole owner of an unincorporated business if the issues on which the applicant prevails are related primarily to per-sonal interests rather than to business interests. (e) The employees of an applicant in-clude all persons who regularly per-form services for r
24、emuneration for the applicant, under the applicants direc-tion and control. Part-time employees shall be included on a proportional basis. (f) The net worth and number of em-ployees of the applicant and all of its affiliates shall be aggregated to deter-mine eligibility. Any individual, cor-poration
25、, or other entity that directly or indirectly controls or owns a major-ity of the voting shares or other inter-est 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
26、 an af-filiate for purposes of this part, unless the administrative law judge deter-mines that such treatment would be unjust and contrary to the purposes of the Act in light of the actual relation-ship between the affiliated entities. In addition, the administrative law judge may determine that fin
27、ancial relation-ships of the applicant other than those described in this paragraph constitute special circumstances that would make an award unjust. (g) An applicant that participates in a proceeding primarily on behalf of one VerDate Mar2010 10:10 Dec 13, 2010 Jkt 220218 PO 00000 Frm 00603 Fmt 801
28、0 Sfmt 8010 Y:SGML220218.XXX 220218wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-594 49 CFR Ch. VIII (10110 Edition) 826.5 or more other persons or entities that would be ineligible is not itself eligible for an aw
29、ard. 46 FR 48209, Oct. 1, 1981, as amended at 54 FR 10332, Mar. 13, 1989 826.5 Standards for awards. (a) A prevailing applicant may re-ceive an award for fees and expenses in-curred in connection with a proceeding, or in a significant and discrete sub-stantive portion of the proceeding, un-less the
30、position of the agency over which the applicant has prevailed was substantially justified. The burden of proof that an award should not be made to an eligible prevailing appli-cant is on the agency counsel, who may avoid an award by showing that the agencys position was reasonable in law and fact. (
31、b) An award will be reduced or de-nied if the applicant has unduly or un-reasonably protracted the proceeding or if special circumstances make the award sought unjust. 826.6 Allowable fees and expenses. (a) Awards will be based on rates cus-tomarily charged by persons engaged in the business of acti
32、ng as attorneys, agents, and expert witnesses, even if the services were made available with-out charge or at a reduced rate to the applicant. (b)(1) No award for the fee of an at-torney or agent under these rules may exceed $75 indexed as follows: XhrCPI NewCPI$75 /_=1981The CPI to be used is the a
33、nnual aver-age CPI, All Urban Consumers, U.S. City Average, All Items, except where a local, All Item index is available. Where a local index is available, but re-sults in a manifest inequity vis-a-vis the U.S. City Average, the U.S. City Average may be used. The numerator of that equation is the ye
34、arly average for the year(s) the services were pro-vided, with each year calculated sepa-rately. If an annual average CPI for a particular year is not yet available, the prior years annual average CPI shall be used. This formula increases the $75 statutory cap by indexing it to reflect cost of livin
35、g increases, as authorized in 5 U.S.C. 504(b)(1)(A)(ii). Application of these increased rate caps requires af-firmative findings under 821.6(c) of this chapter. For ease of application, available U.S. City figures are repro-duced as follows: 1981 90.9 1982 96.5 1983 99.6 1984 103.9 1985 107.6 1986 1
36、09.6 1987 113.6 1988 118.3 1989 124.0 1990 130.7 1991 136.2 1992 140.3 1993 144.5 (2) No award to compensate an expert witness may exceed the highest rate at which the agency pays expert wit-nesses. However, an award may also in-clude the reasonable expenses of the at-torney, agent, or witness as a
37、separate item, if the attorney, agent, or witness ordinarily charges clients separately for such expenses. (c) In determining the reasonableness of the fee sought for an attorney, agent, or expert witness, the adminis-trative law judge shall consider the fol-lowing: (1) If the attorney, agent, or wi
38、tness is in private practice, his or her cus-tomary fee for similar services, or if an employee of the applicant, the fully al-located 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 ti
39、me 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
40、report, test, project, or similar matter prepared on behalf of a party may be awarded, to the extent that the charge for the serv-ice does not exceed the prevailing rate for similar services, and the study or VerDate Mar2010 10:10 Dec 13, 2010 Jkt 220218 PO 00000 Frm 00604 Fmt 8010 Sfmt 8010 Y:SGML2
41、20218.XXX 220218ER14JN94.001wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-595 National Transportation Safety Board 826.22 other matter was necessary for prepa-ration of the applicants case. 46 FR 48209, Oct. 1, 198
42、1, as amended at 58 FR 21544, Apr. 22, 1993; 59 FR 30531, June 14, 1994 826.7 Rulemaking on maximum rates for attorney fees. (a) In addition to increases based on cost of living (see 826.6), attorney fees in some or all of the proceedings cov-ered by this part may also be increased beyond the statut
43、ory cap of $75 if war-ranted by special factors (such as lim-ited availability of attorneys qualified to handle certain types of proceedings). The Board will conduct any rule-making proceedings for this purpose under the informal rulemaking proce-dures of the Administrative Procedure Act. (b) Any pe
44、rson may file with the Board a petition for rulemaking to in-crease the maximum rate for attorney fees by demonstrating that a special factor(s) justifies a higher fee. The pe-tition shall identify the rate the peti-tioner believes the Board should estab-lish and the proceeding(s) or types of procee
45、dings in which the rate should be used. It should also explain fully the reasons why the higher rate is war-ranted. The Board will respond to the petition within 60 days after it is filed, by initiating a rulemaking proceeding, denying the petition, or taking other appropriate action. 58 FR 21545, A
46、pr. 22, 1993 826.8 Awards against the Federal Aviation Administration. When an applicant is entitled to an award because it prevails over an agen-cy of the United States that partici-pates in a proceeding before the Board and takes a position that is not sub-stantially justified, the award shall be
47、made against that agency. Subpart BInformation Required From Applicants 826.21 Contents of application. (a) An application for an award of fees and expenses under the Act shall identify the applicant and the pro-ceeding for which an award is sought. The application shall show that the ap-plicant has
48、 prevailed and identify the position of the agency in the pro-ceeding that the applicant alleges was not substantially justified. Unless the applicant is an individual, the applica-tion shall also state the number of em-ployees of the applicant and describe briefly the type and purpose of its or-gan
49、ization or business. (b) The application shall also include a statement that the applicants net worth does not exceed $2 million (if an individual) or $7 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
