ML20024J045
| ML20024J045 | |
| Person / Time | |
|---|---|
| Issue date: | 02/24/1994 |
| From: | Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| FRN-59FR23119 AE61-2, AE61-2-006, AE61-2-6, SECY-94-046, SECY-94-46, NUDOCS 9403040042 | |
| Download: ML20024J045 (35) | |
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February 24, 199-SECY-94-046 (Affirmation)
FQB:
The Commissioners FROM:
William C.
Parler General Counsel
SUBJECT:
FINAL RULE ON EQUAL ACCESS TO JUSTICE ACT (10 CFR PART 12)
PURPOSE:
To obtain Commission approval for publication in the Federal Register of final regulations implementing the Equal Access to Justice Act.
DACKGROUND:
The Equal Access to Justice Act (EAJA) allows persons who prevail against the Government in certain agency adjudicatory proceedings to recover attorney fees and other costs.
The Act requires agencies conducting proceedings covered by the EAJA to establish by rule procedures for submission and consideration of applications for an award of fees and other expenses, after consultation with the Chairman of the Aaainistrative Conference of the United States (ACUS).
A proposed NRC rule providing such procedures was published in the Federal Recister, at 58 Fed. Reg. 41061, on August 2, 1993.
The proposed rule was substantially identical to model EAJA regulations issued by the Administrative Conference of the United States (ACUS).*
DISCUSSION:
This paper submits for Commission consideration a final rule designed to implement the Equal Access to Justice Act, which authorizes agencies to award attorney fees and other expenses to
Contact:
NOTE:
TO BE MADE PUBLICLY AVAILABLE Susan Fonner, CGC WHEN THE FINAL SRM IS MADE 504-1634 AVAILABLE 2The first ACUS model rule was published at 46 Fed. Reg. 32900 on June 25, 1981.
ACUS published revised model regulations at 51 Fed. Reg. 16659 on May 6, 1986.
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2 parties that have prevailed over an agency in certain agency adjudications.
Generally, for a person to recover these fees and expenses, two conditions must be presents (1) the proceeding in which the person prevailed must be one required by statuto to be determined on the record, and (2) the position taken by the government in the proceeding must not have been substantially justified.
Until the Inspector General Act Amendments of 1988 (Pub.
L.
100-504, 1102 Stat. 2515) were adopted, there was consioerable doubt regarding the need for the NRC to adopt regulations providing EAJA procedures.
This was in part because of a recurring provision in appropriation acts prohibiting the use of funds appropriated to the NRC to pay the expenses, or otherwise compensate, parties intervening in NRC regulatory or adjudicatory proceedings.
In addition, case law developed in the 1980's indicates that the Commission would receive judicial support if it determined that no NRC license proceeding of any kind is covered by the EAJA.
The need for the issuance of EAJA regulations by the Commission became clear with the enactment of the Inspector General Act Amendments of 1988.
When the latter amendments took effect in 1989, they operated to apply the provisions of the Program Fraud Civil Remedies Act (PFCRA) to the NRC.8 PFCRA hearings are expressly covered by the EAJA.
(5 U.S.C. 504 (b) (1) (C) (iii) )
This provided the impetto for the NRC proposed rule published on August 2, 1993.
Further information about the proposed rule may be found in SECY-93-141, dated May 21, 1993.
The language of.NLC's proposed EAJA rule tracked the 1986= revised ACUS model rule very closely.
Some changes have been made in 3
this language in the final rule, largely in response to comments received on the proposed rule.3 ACUS and the Nuclear Management and Resources Council (NUMARC) submitted the only comments on the proposed rule.
It is ACUS's view that agencies should provide specific deadlines for issuance of the initial decision on the application for award of attorney fees and for agency action on a petition for 2PFCRA regulations were promulgated by the Commission on September 18, 1991 (56 Fed. Reg. 47132), effective October 18, 1991.
PFCRA applies to false claims and statements involving sums not exceediny $150,000 made by any person to an agency covered by the Act.
The Act authorizes such an agency, following a hearing, to impose civil penalties of up to $5000 for each separate false claim and, in addition, assessments of up to double the amount falsely claimed.
'A f ew minor editorial changes were also made in the language of the rule.
3 rulemaking to increase the maximum rate for attorney fees.'
After considering this comment and consultation with the Legal Counsel for the Atomic Safety and Licensing Board Panel (ASLBP),
the following changes were made in the regulations:
(1) A sentence has been added to section 12.307 requiring the initial decision to be issued within 90 days after completion of proceedings on the application for an award, but permitting the adjudicative officer to extend the time limit after notice to the parties of the reason for the delay;* and f2) A sentence has been added to section 12.107 requiring Lhe Commission to determine within 90 days after the petition is filed what action it will take on a petition for rulemaking to increase the maximum rate for attorney f ees.'
These self-imposed deadlines for decisions by the Commission and the ASLBP are a compromise between the model rules and the NRC's more usual approach of not imposing hard deadlines for such decisions.
ACUS also suggested that we might wish to consider amending the rule to take into account a 199? U.S.
Supreme Court decision that held that an agency cannot insist on exhaustion of intra-agency appeals prior to judicial review, unless the agency promulgates rules that require intra-agency appeals and stays the effect of agency decisions during such appeals. (parby v. Cisneros, 113 S.Ct. 2539.)
In fact, this problem was already addressed, at le-a; An part, by a cross-reference in the proposed rule to 10 C.F.R. 2.786, which contains the Commission's regular review procedures.
Section 2.786 (b) (1) provides that the filing of a petition for review is mandatory for a party to exhaust its administrative remedies before seeking judicial review.
However, because it may be fairer notice to state the mandatory appeal requirement in the EAJA regulations themselves, section 12.308 has been amended to state that an aggrieved party is required to seek Commission review of the adjudicative
- The EAJA provides a $75 per hcur ceiling on attorney's fees, but allows agencies to raise that statutory ceiling by regulation. (5 U.S.C. 504 (b) (1) ( A) (ii) )
SThe model rule states: "The adjudicative officer shall issue an initial decision on the application within [to be supplied by the agency) days after completion of the proceedings on the application."
'The model rule provides that the agency 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.
4 officer'n initial decision.
We have also included in section 12.308 a statement on staying the effect of the initial decision during an appeal to the Commionion.'
NUMARC commented that the proposed EAJA rule should be revised to make clear that only NRC's PFCRA proceedings are subject to the rule.
NUMARC's comments also indicated that there was a need for clarification of those provisions of the proposed rule delineating its applicability.
Our subsequent review of the proposed rule led to the conclusion that the effort to follow the model ACUS rule as closely ao possible may have resulted in come ambiguity regarding the application of the rule.
Therefore, we have simplified somewhat the provisions addressing the purpose of the regulations (section 12.101), when the EAJA applien (section 12.102), and the proceedinga covered (section 12.103).
The final rule lists only proceedinga under the Program Fraud Civil Remedies Act and appeals before a board of contract appeala as being.:vered.
However, it contains a general catch-all provision that leaves open the possibility that a determination will be made that the regulations apply to another type of NRC proceeding.
COORDIFATION:
a The Inspector General has no objection to the attached final rule.
The ASLBP has no objection, except that it continues to maintain the position regarding NRC hearings required uo be on the record that was expressed by the Chairman, ASLBP, in commenting on the proposed rule before it was published in August 1993.'
The ASLBP views, and OGC's response to those views, were set-out as attachments to SECY-93-141.
'By way of contrast, 10 C.F.R. 2.786(f) provides that.
"Neither the filing nor the granting of a petition for review will atay the effect of the decision or action of the presiding officer, unless otherwise ordered by the Commission."
'In commenting on the proposed rule, Judge Cotter, the ASLBP Chairman, raised the issue whether section 189a of the Atomic Energy Act requires reactor licensing proceedings to be conducted "on the record." Judge Cotter did not seem to suggest that the rule should contain an explicit statement that such proceedings are covered by the rule.
Rather, he objected because ho read the OGC memorr.ndum to the Commission and the preamble for the 3
proposed rule as saying that section 189a does not require a formal hearing in reactor licensing cases.
As pointed out by the OGC response, it is OGC's view that serious doubt exista whether section 189a requires reactor licensing proceedings to be conducted on the record.
However, the rule does not preclud3 a
party from filing an application for award of attorney fees in a proceeding not specifically listed in the rule, leaving the issue whether the proceeding is covered for resolution in proceedinge on the application.
5 EEC?MENDAUON :
That the Commission:
1.
hppr_ ole _ publication of the fina rule
- t. J set forth in Attachment 1.
2.
Certify that this rule will not have a significant economic impact on a trubstantial number of e.nall entitica in order to satisfy requiremento of the Regulatory Flexibility Act, 5 U.S.C.
605(b).
This certification is included in the attached Federal Register Notice.
3.
Note Lhats a.
The final rulo will be effective 30 days after it in published in the Federal Register; b.
The Chiof Counsel for Advocacy of the Small 13us.inens Adniir;intration will be informed of the certification regarding economic impact on small entities and the reasons for it as required by the Regulatory Flexibility Act; c.
The information collection requiremento in the final rule are exempt from the Paperwork Reduction Act of 1980; d.
The appropriate Congressional conmittees wilJ be inf ortned by letter c ach as that attached to this paper
( At tacInnen t 2).
JLcd William C.
Parler General Counsel At ta clurien t s :
1.
Federal Repicter Not ce of Finaa Rulemaking 2.
Draft CongreJuional Letter
6-1 Commissioners' comments or consent should be provided directly to the Office of the Secretary by COB Pridav, March 11, 1994.
Commission Staff Office camments, if any, should be submitted to the Commissioners NLT Friday, March 4, 1994, with an infor-r mation copy to the Office :f the Secretary.
If the paper is of such a nature that i t regt.tres additional review and commer.t, I
the Commissioners and the Sc,:cotariat should be apprised of when comments may be expected.
This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of March 14, J994.
Please refer to the atoropiiate Weekly Commission Schedult, when published, for a cpecifse date and time.
DIS M UUTJON:
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ENCLOSURE 1 Federal Register Notice of Final Rulemaking-P
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UUCLEAR REGULATORY COMMISSION 10 CFR PART 12 RIN 3150 AE61 Equal Access to Justice Act:
Implementation AGENCY:
Nuclear Regulatory Commission.
ACTION:
Final rule.
SUMMARY
1he Nuclear Regulatory Commission (NRC) is amending its regulations by adding new provisions designed to implement the Equal Access to Justice Act (EAJA),
The EAJA provides -for the award of fees and expenses to certain individuals and businesses that prevail in agency-formal adjudicatory proceedings in which the agency's position is determined not-to have been a
substantially justified.
EFFECTIVE DATE:
[30 days after date of publication in the Federal Register)
-FOR FURTHER INFORMATION CONTRACT:
Susan Fonner. Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington DC 20555. telephone (301) 504-1634.
SUPPLEMENTARY INFORMATION:
1. Background
-11. Responses to Comments Received.
'111. Administrative Statements.
1 1
===1.
Background===
The Equal Access to Justice Act (E/JA) became law on October 21. 1981 (5 U.S.C. 504).
The EAJA authorizes agencies to award attorney fees and other e>penses to parties that prevail over an agency in certain agency proceedings under specified circumstances.
Generally. for an award to be made, the proceeding must be one that is " required by statute to be determined on the record."
See. Ardestani v ll S Department of Justice.
U.S.
. 112 S.Ct. 515 (1991).
On October 28. 1981 (46 FR 53199). the NRC published a proposed rule designed to implement the EAJA in the Federal Register.
However, serious doubt developed as to the need for the regulations.
A significant consideration in this regard was the impact of a statutory bar against the use of funds appropriated to the NRC "to pcy the expenses of. or otherwise compensate parties intervening in regulatory or adjudicatory proceedin',s."
lhis provlslon first appeared in the Energy and Water Development Appropriations Act of 1981 (Pub. L. No. 966-367. Sec. 502. 94 Stat. 1344. 1345 (1980)). and has continued to appear each year in subsequent NRC appropriation acts.
In addition, case law developed in the 1980's indicating that the Commission would receive judicial support if it determined that no NRC license proceeding of any kind is covered by the EAJA.
With the enactment of the Inspector General Act Amendments of 1988 (Pub. L.100-504.1102 Stat. 2515). which established an Office of the Inspector General in the NRC. the NRC became subject to the Program Fraud Civil Remedies Act (PFCRA), 31 U S.C. ch. 33.
Hearings under the Program l
Fraud Civil Remedies Act are expressly covered by the EAJA. necessitating the issuance of EAJA regulations by the NRC.
However. because of the length of 2
4 time that had gone by since the NRC issued the'1981. proposed EAJA rule. the' Commission replaced it with a new proposed rule published on August 2. 1993 (58 FR 41061).
The new proposed rule was essentially similar to a model rule
~
suggested by the Administrative Conference of the United States (ACUS) for-agency adoption. (May 6. 1988. 51 FR 16665.)
- 11. Responses to Comments Received.
In response to the August 2.1993 proposed rule. the NRC received one set of comments from ACUS and one set from the Nuclear Management and Resources Council (NUMARC).
The NRC's consideration of the comments follows.
A.
Time deadlines 1.
Decision on the petition for increase of maximum rate for attorney fees.
i Comment.
ACUS recommended that the rule provide a specific time frame for agency action on a petition for rulemaking to increase the maximum rate for a corney fees.
Response
The_ EAJA provides a $75. hourly ceiling on attorney-fees, but l
allows agencies to raise the statutory ceiling by regulation. The proposed rule provides that any person may file with the Commission a petition for rulemaking to increase the $75 maximum hourly rate for attorney fees, and refers to 10 CFR 2.802 and 2.803 for the procedures to be followed with I
respect to such petitions.
Neither the proposed rule nor 10'CFR.2.802 nor 10 I
CFR 2.803 provides a specific time-frame 'or. agency action on the petition for-rulemaking.
A sentence has been added to 10 CFR 12.107 requiring the-Commission to determine what action it will take on the petition within 90 days after the petition is. filed.
2.
Decision on the application for award of attorney fees.
3
Cnmwnt ACUS recommended that the rule provide a specific time frame for the adjudicative officer to issue an initial decision on the application for award of attorriey fees.
Resrionse 10 CFR 12.307 of the proposed rule states requirements for the adjudicative officer's initial decis mn on the application for award of attorney fees. but does not prescribe a time limit for the adjudicative officer to issue the decision.
A sentence has been added to 10 CFR 12.307 requiring the initial decision to be issued within 90 days after completion of proceedings on the application. but permitting the adjudicative officer to extend the time limit af ter notice to the parties of the reason for the delay.
A.uthority is provided for the adjudicative officer to extend the time period in order to prevent the anterruption of cases presenting pressing health and safety concerns.
The NRC expects that extensions will be issued sparingly.
B.
Evhaustion of Administrative Remedies Comment ACUS stated that if the NRC believes that a request for administrative review should be a prerequisite to judicial review, it should recast 10 CFR 12.303 (Agency review) in li et of the Supreme Court's decision in Darhv v Cisneros.
U.S.
113 S.Ct. 2539 (June 21. 1993).
Response
Within the last year, the Supreme Court cast new light on the requirements fo exhaustion of adm"nistrative r?medies before appealing an agency decision to the courts.
In Darbv v Cisneros. the Court held that an agency cannot insist on exhaustion of intra-agency appeals prior to judicial review unless the agency promulgates rules that require intra-agency appeals and ;tay the effect 01 agency decisions during such appeals.
The Commission believes that for purposes of Judicial and administrative economy a request for aaministrative review should be a prerequisite to judicial review.
4
particularly because the NRC frequentlj entertains proceedings that encompass highly technical matters.
The incorporation by reference in 10 CFR 12.308 of the review procedures l
set out in 10 CFR 2.786 should be sufficient to satisfy the commenter that the NRC has addressed the Darby case ruling in these regulations, because 10 CFR 2.786(b)(1) expressly provides that the filing of a petition for review is mandatory for a party to exhaust its administrative remedies.
Nevertheless.
it may be considered fairer notice to state the requirement in 10 CFR 12.308 itself.
Therefore, the NRC has amended 10 CFR 1.?.308 to state unambiguously that an aggrieved party is required to seek Commission review of the adjudicative officer's initial decision.
The application of the part of the Court's opinion on staying the effect of the initial decision seems inapposite in the context of an EAJA administrative proceeding. because it makes little sense to speak of a stay of an initial decision denying the application for award of attorney fees which is the type of decision most likely to be appealed.
A successful applicant for an award 1s not likely to appeal unless he or she is dissatisfied with the amount of the award.
This poses a very different type of situation from that in the Darbv case, where the Court had before it an agency decision debarring petitioners from participating in Federal programs.
Nevertheless. in what is perhaps an excess of caution we have included in NRC's EAJA rule a statement on staying the ef fect of the initial decision during an appeal to the Commiss mn.
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C, Proceedinos subject to the EAJA Comment.
NUMARC commented that the rule should be revised to make clear-that the only proceedings subject to iRC's EAJA rule are those conducted pursuant to the Program Fraud Civil RemeJ10s Act.
Response.
The EAJA applies only to an agency adversary adjudication.
50 U.S.C. 504(a).
The term " adversary adjudication" is defined by 5 V'.S.C.
504(b)(1)(C) to mean an 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, a hearing conducted under 31 U.S.C. ch. 38 (PFCRA), and an adjudication under 5 U.S.C. 554 (the Administrative Procedure Act).
Section 554 of the Administrative Procedure Act expressly states that-(with certain e.ceptions) it applies "in every case of adjudication required by statute to be determined on the record after opportsnity for an agency hearing."
A proceeding for the purpose of granting or renewing a license is expressly excluded from EAJA coverage by 5 U.S.C. 504(b)(1)(C).
However.
there is no express exclusion of proceedings suspending revoking, or amending a.lictose, including that for a nuclear reactor.
As indicated in the Suppler.entary Information for NRC's proposed EAJA rule. the question of-such proceedings was at least addressed partially in 1983, when a materials license amendment proceeding was judicially held as not being required by statute to.
' be conducted "on the record."
In that case t'he court declined ~to read section 189(a) of the Atomic. Energy Act.of 1954-(AEA) as' requiring an on-the-record hearing. in the absence cf clear Congressional intent to trigger the formal on-the-record hearing provisions of the Administrative Procedure Act.
West Chicaco. Ill. v. U S Nuclear Reaulatorv Commission. 701 F.2d 632 (1983).
Since that time. the Commission has gone on record that it interprets section 6
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1898 of the AEA as not requiring formal hearings in reactor licensing proceedings.
[n Banc Brief for Respondents dated August 30.1991 (filed in the U.S. Court of Appeals for the District of Columbia Circuit. No. 1381.
. Nuclear Information and Resource Service v. NRC. at pp 32-38).
In light of the above. it is not unreasonable to conclude that no NRC proceeding other than an appeal to a board of contract appeals under the Contract Disputes Act or a Program Fraud Civil Remedies.Act hearing-is covered by the EAJA.
Nevertheless, the Commission does_not wish to frame its EAJA regulations in such a way as to preclude potential applicants for attorney fee i
awards from raising the issue of dAJA coverage. if they can make a good faith argument that the proceeding in which they have been involved falls under the EAJA.
In addi'. ion, there is always the possibility of new enactments that could make the EAJA applicable to proceedings not previously entertained by the agency.
Therefore, the Commission _has decided not to state that the NRC's EAJA rule applies only-to a proceeding under the Program Fraud Civil Remedies-Act.
Nevertheless the Commission has decided to amend 10 CFR 2.101.12.102.
t and 12.103 to clarify its intent regarding the scope of coverage of the a
regulations. The amendment does not make express reference to any type of
-proceedings other than appeals under the Contract Disputes Act and adjudications conducted pursuant to the Program Fraud Civil Remedies Act. but it contains a general provision that will encompass other types of proceedings
-thet may fall within the parameters of the EAJA.
This leaves room for case-by-case determinations-on applicants' claims of coverage in areas that have not been addressed previously by sta'.ute. :ase law, or express Commission interpretation.
7
111.
Administrative Statements Environmental Impact:
Categorical Exclusion The NRC has determined that this regulation is the type of action described in categorical exclusion 10 CFR 51.22(c).
Therefore, neither an environmental impact statement nor an environmental assessment has teen prepared for this rule.
Paperwork Reduction Act Statement The information collection requirements contained in this rule are exempt from the Paperwork Reduction Act of 1980 (44 U.S.C. 3518(c)(1)).
Regulatory Analysis The EAJA provides that individuals and businesses that meet certain net worth and other requirements and prevail over the NRC in an adversary adjudication in which the NRC's position is not substantially justified may be awarded fees and expenses incurred in connection with the proceeding.
Recent events, most notably the NRC's publication of a final rule implementing the Program Fraud Civil Remedies Act and actions thereunder, suggest that it is necessary for the NRC to adopt procedures to govern the receipt and determination of applications for EAJA fees.
The procedures adopted mirror in important respects the model rule promulgated by the ACUS.
The NRC has fulfilled the statutorily mandated process of consultation between the Chairman of the ACUS and the agency with respect to EAJA implementing procedures.
See 5 U.S.C. S N (1).
The Commission believes that the procedures adopted are preferable to other procedural requirements that might 8
- _.... ~... - ___..--________.____._.... _.._ _.-
4' be imposed.- - The foregoing discussion constitutes the regulatory analysis for this final rule.
Regulatory Flexibility Certification in accordance with the Regulatory Flexibility Act of 1980. 5 U.S.C.
605(b). the Commission certifies that if promulgated. this rule will not have a significant economic impact on a substantial number of small entities.
The rule merely will establish a procedural framework for the submission and determination of applications for fees and expenses incurred. in participating in NRC adjudications and will not itself impose significant economic benefits or burdens.
Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109. does not-apply to this rule. because these amendments do not involve any provisions which would impose backfits as defined in 10 CFR 50.109(a)(1).
List of Subject Terms in 10 CFR Part 12 Adversar
'judications. Award. Equal Access to Justice Act. Finil disposition. '
. orth Party.
--For the N 2ns set out in the preamble and under the authorit; of the.
- Atomic Energy Act of'1954 as amended, the Energy Reorganization Act of 1.174 as amended, and 5 U.S.C. 552 and 553. the NRC is adopting a new 10 CFR Part-12.
3 9
1.
A
.w Part 12 is added to 10 CFR Chapter 1 to read as follows:
PART 12 - IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN AGENCY PROCEEDINGS Subpart A - General Provisions Sec.
12.101 Purpose.
12.102 When the EAJA applies.
12.103 Proceedings covered.
12.104 Eligibility of applicants.
12.105 Standards for awards.
12.106 Allowable fees and expenses.
12,107 Rulemaking on maximum rates for attorney fees.
12.108 Awards against other agencies.
12.109 Decisionmaking authority.
Subpart B Informatiori Required From Applicants 12.201 Contents of application.
12.202 Net worth exhibit.
12.203 Documentation of fees anc expenses.
12.204 When an application may be filed.
Subpart C - Procedures for Considering Applications 12.301 Filing and service of documents.
12 302 Answer to application.
12.303 Reply.
10
f 12.304 Comments by other parties.
12.305 Settlement.
12.306 Further proceedings.
12.307 Decision.
12.308 Agency review.
12.309 Judicial review 12.310 Payment of award.
Authority: Sec. 203(a)(1), Pub. L.96-481. 94 Stat. 2325 (5 U.S.C. 504(c)(1));
Pub. L. 99-80. 99 Stat. 183.
Subpart A General Provisions S 12.101 Purpose.
The purpose of this Part is to state the regulatory requirements for-award of attorney fees to eligible individuals and entities in certain administrative proceedings before_the Nuclear Regulatory Commission, in implementation of the Equal Access to Justice Act. 5 U.S.C. 504 (EAJA), which
.r provides for the award of attorney fees and other expenses to parties to
" adversary adjudications", as defined in 5 U.S.C. 504(b)(1)(C).
In general.
i an " adversary adjudication" is an adjudication that is-required by statute to be determined on the record after opportunity-for' hearing before an agency' of -
the United States and in which the position of--the agency. or any component of the agency, is presented by an attorney or other representative who enters an appearance and participates in the p.Oceeding.
However..some agency adjudications are expressly excluded from coverage by 5 U.S.C. 504 (e.g., an
. adjudication for the purpose of granting or renewing a license) even though 11
~
I they fall within this general definition and certain appeals before an agency board of contract appeals and Equal Access to Justic Act hearings conducted under 31 U.S.C. ch. 38 are expressly covered.
An eligible party may receive an award in an adversary adjudication when the party prevails over the Commission, unless the Commission's position was substantially jus +.1fied or special circumstances make an award unjust.
The regulations 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 procecures and sitadards tn
~ Commission will use to make *.nem.
S 12.102 When the EAJA at.nl_ijs.
The EAJA applies to any cevered adversary adjudication pending or commenced before the Commission on or after August 5, 1985.
S 12.103 Proceedinas covered.
(a)
The EAJA applies to the following proceedings:
(1)
Hearings under the Program Fraud Civil Remedies Act (31 U.S.C.
3801-12).
(2)
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); and (3)
Adversary adjudications conducted by the Commission pursuant to--
any other statutory provision that requires a proceedi..; before the Nuclear Regulatory Commission to be so conducted as to fall within the meaning of
" adversary adjudication" under 5 U.S C. 504(b)(1)(C).
12
= -
(b)
The Commission's failure to identify a type of proceeding as an adversary adjudication shall not preclude the filing of an application by a party who believes the proceeding-is covered by the EAJA.
Whether the proceeding is covered will then be an issue for resolution in proceedings on the application.
(c) If a proceeding includes both matters covered by the EAJA and matters specifically excluded from coverage, any award made will include only fees and expenses related to covered issues.
S 12,104 Eliaibility of aoolicants.
(a) To be eligible for an award of attorney fees and other expenses under the EAJA. the applicant must be a party to the 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 subpart B.
(b) The types of eligible applicants are as follows:
(1):An individual with a net worth of not more than 12 million; (2) The sole owner of an unincorporated business who has a net worth of not more than $7 million, including both personal and business interests, and Enot more'than 500 employees:
(3) A charitable or other tax-exempt organization 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 not more than 500 employees: and 13
l l
l (5) Any other partnership. corporation association, unit of local government, or organization with a net worth :' not more than $7 million and not more than 500 employees.
(c) For the purpose of eiigibility, the net worth and number of employees of an applicant shall be deti nined as of the date the proceeding was initiated.
(d) An applicant who owns an unincorporated business will be considered as 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 employees of an applicant include all persons who regularly 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 interests 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 adjudicative officer determines that such treatment would be unjust and contrary to the purposes of the Act in light of the actual relationship between the affiliated entities.
In addition. the adjudicative of ficer may determine that financial relationships of the applicant other than those described in this paragraph constitute special circumstances that would make an award unjust.
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(g) An applicant that participates in a proceeding primarily on behalf of one or more other persons or entities that would be ineligible is not itself eligible for an award.
S 12.105 Standards for awards.
(a) A prevailing applicant may recei"e an award for fees and expenses incurred in connection with a proceeding or a significant and discrete substantive portion of the proceeding, unless the position of the Commission over which the applicant has prevailed was substantially justified.
The position of the Commission includes. in addition to the po'ition taken by the Commi:sion in the adversary adjudication. the action or failure to act by the Commission upon which the adversary adjudication is based.
The burden of proof that an award should not be made to a prevailing applicant because the-Commission's position was substantially justified is on the Commission counsel.
(b) An award will be reduced or denied if the applicant has unduly or
- unreasonably protracted the proceeding or if special circumst nces make the award sought unjust.
S 12,106 Allowable fees and expenses.
(a) Awards will be based on rates customarily charged by persons engaged in the business of acting as attorneys, agents, and expert witnesses even if.
the services were made available without charge or at reduced rate to the applicant.
(b) No award for the fee of an attorney _or agent under these rules may exceed $75.00 per hour.
N.o award to compensate an expert witness may exceed 15
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the highest rate at which the Commission pays expc o witnesses.
However, an 1
Jaward may also include the reasonable expenses of the attorney, agent, or witness as _ a separate item. if the attorney, aqent. or witness ordinarily charges clients separately for these expenses.
(c) In determining the reasonableness of the fee sought for an-attorney, agent, or expert witness, the adjudicative officer shall consider the following:
(1) If the attorney. agent. or witness is in private practice. his or-her customary fees for similar services, or, if an employee of the applicant, the fully allocated costs 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) Other factors that 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, c
to the extent that the charge for the services does not exceed the prevailing rate for similar services, and the study or other matter was necessary for preparation of applicant's case, S 12.107 Rulemaking on maximum rates for attorney fees.
(a) If warranted by an iricrease in the cost of-living or by special circumstances (such as limited availability of attorneys qualified to handle
- certain types of proceedings) the Commission may adopt regulations pro'viding 16
I that attorney fees may be awarded at a rate higher than 175 per hour in some, j
or all of the types of proceedings covered by this part.
The Commission will conduct any rulemaking proceedings for this purpose under the informal rulemaking procedures of the Administrative Procedure Act.
(b) Any person may file with the Commission a petition for rulemaking to increase the maximum rate for attorney fees, in accordance with the requirements of 10 CFR 2.802.
The petition should identify the rate the petitioner believes the Commission should establish and the types _of proceedings in which the rate-should be used.
It should also explain fully the reasons why the higher rate is warranted.
Within 90 days after the petition is filed. the Commission will determine whether it will initiate a rulemaking proceeding. deny the petition, or take other appropriate action on the petition.
The Commission will act on the petition in accordance with 10 CFR 2.803.
S-12.108 Awards aaainst other acencies.
If an applicant is entitled to an award because it prevails over another
' agency of the United States that participates in'a proceeding before the Commission and takes a. position that is not substantially justified. the award or an appropriate portion of the award shall be made against-that agency.
S12.109 Decisionmakinc authority.
Unless otherwise ordered _by the Commission in a particular proceeding, each' application under this part shall be assigned for_ decision to the official or decisionmaking body that entered the decision in the adversary 17 l
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adjudication.
That official or decisionmating body is referred to in this part as the " adjudicative officer."
Subpart B - Information Required From Applicants S 12.201 Contents of apf mation.
(a) An application for an award of fees and expenses under the EAJA shall identify the applicant and the proceeding for which an avard is sought.
The application shall show that the applicant has prevailed and identify the position of the Commission or other agency that the applicant alleges was not substantially justified.
Unless the apphcant is an individual, the application shall also state the number of employees of the applicant and describe briefly the type and purpose of its organization or business.
(b) The applicatlon shall also include a statement that the applicant's net worth does not exceed 12 million (if an individual) or 1/ million (for all other applicants, including their affiliates).
However, an applicant rt.ay omit this statement if-(1) The applicant attaches a copy of a ruling by the Interna' 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 this section; or (2) The applicant states that it is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C.1141j(a)).
(c) The application shall state the amount of fees and expenses for which an award is sougnt.
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i (d) The application may also include any other matters that the applicant wishes the Commission 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.
S 12.202 Net worth exhibit, i
(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-S 12.104(f) of this part) when the proceeding was initiated.
The exhibit may be in aay form convenient to the applicant that provides full disclosure of the applicant's and its affiliates' assets and liabilities and is sufficient-1 to determine whether the applicant qualifies under the standards in this part.
The adjudicative officer may require an applicant to file additional information to determine its eligibility for an award.
i (b) Ordinarily, the net worth exhibit will be included in the public t
record of the proceeding.
However an applicant that objects to public disclosure. of information in any portion of the exhibit and believes there are legal grounds for withholding it from disclosure, may submit that portion of the exhibit directly to the adjudicative officer -in a sealed ' envelope labeled
" Confidential Financial Information " accompanied by a motion to withhold the-information from public disclosure.
The motion shall describe the information-
- sought to be Withheld and explain in detall, why it falls within one or more 4
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of the specific exemptions from mandatory disclosure under the f reedom of Informat'.on Act. 5 U 5.C. 552(b)(1 b(9) why public disclosure of the information would adversely affect the applicant, and why disclosure is not required in the public interest.
The material in question shall be served on counsel representing the agency against which the applicant seeks an award.
but need not be served on any other party to the proceeding.
If the adju'Jacative officer finds that the information should not be withheld from disclosure. It shall be placed in the public record of the proceeding.
Otherwise, any request to inspect or copy the exhibit shall be disposed of in accordance with the Commission's established procedures under the Freedom of Information Act, 10 CFR part 9. subpart A.
S 12.203 Documentation of fees and expenses.
The application shail 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.
A separate itemized statement shall be submitted for each professional firm or individual whose services are covered by the application, showing the hours spent in connection with the proceeding by each individual. a description of the specific services performed. the rates rc which each fee has been computed.
any expenses for which reimbursement i; sought, the total amount claimed, and the total amount paid or payable by tht applicant or by any other person or entity for the services provided.
The cdjudicative officer may require the applicant to provide vouchers, receipts, logs, or other substantiation for any fees or expenses claimed, pursuant to S 12.306 of this part.
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9 12,204 When an application may be filed, (a) An application may be filed whenever the applicant has prevailed in the proceedi'.,g or in a significant and discrete substantive portion of the t
proceeding, but in no case later than 30 days after the Commission's final disposition of the proceeding.
(b) For purposes of this rule, final disposition means the date on which a decision or order disposing of the merits of the proceeding or any other complete resolution of the proceeding, such as a settlement or voluntary dismissal. becomes final and unappealable, both within the NRC and to the courts.
(c) If review or reconsideration is sought or taken of a decision as to which an applicant believes it has prevailed, procee lings for the award of fees shall be stayed pending final disposition of the underlying controversy.
When the United States appeals the underlying merits of an adversary adjudication to a court, no decision on an application for fees and other-expenses in connection with that adversary adjudication shall be made until a final and unreviewable decision is rendered by the court on the appeal or until the underlying merits of the case have been finally determined pursuant to the appeal, i
Subpart C - Procedures for Considering Applications E 12.301 Filina and service of documents.
Any application for an award or other pleading or document related to an app ~ 7 tion shall be filed and served on all parties to the proceeding in the -
same w oner as other pleadings in the proceeding except as proviaed in 512.202(b) for confidential financial information.
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Ll2.302 Answer to _ anplication.
(a) Within 30 days after service of an application. counsel representing the NRC against which an award is sought may file an answer to the application.
Unless the NRC 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 requested.
(b) If the NRC counsel and the applicant believe that the issues in the fee application can be settled, they may jointly file a statement of their intent to negotiate a settlement.
The filing of this statement shall extend the time for filing an answer for an additional 30 days, and further cxtensions may be granted by the adjudicative officer upon request by the NRC counsel and the applicant.
(c) The answer shall explain in detail any objections to the award requested and identify the facts relied on in support of the NRC counsel's position If the answer is based on any alleged facts not already in the record of the proceeding. the NRC counsel shall include with the answer either supporting affidavits or a request f" further proceedings unuer S 12.306.
S 12.303 Reply.
Within 15 days after service of an answer, the applicant may file a reply.
If the reply is based on any alleged facts not already in the record of tne proceeding, the applicant shall include with the reply either supporting affidavits or a request for further proceedings under 5 12.306.
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m S._12.304 Comments by other oarties.
Any party to a proceeding other than the apr'.1 cant aru ile NRC counsel 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 unless the adjudicative of ficer determines that the public interest requires participation in order to permit full exploration of matters raised in the comments.
S 12.305 Settlement.
The applicant and the NRC 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 NRC's standard settlement procedure.
If a prevailing party and the NRC's counsel agree on a proposed settlement of an award before an application has been filed. the application shall be filed with the proposed settlement.
S 12.306 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 the NRC counsel. or on the adjudicative of ficer's own initiative. the adjudicative officer may order further proceedings. such as an informal conference. oral argument. additional written submissions or, as to issues other than substantial justification (such as the applicant's el'gibility or substantiation of fees and expenses). pertinent discovery or an evidentiary hearing.
Further proceedings shall be held only when necessary for full and 23
i fair resolution of the issues arising from the applacction and shall be conducted as promptly as possible.
Wnether or not the position of the agency was substantially Justified shall be determined on the basis of the administrative record, as a whole which is made in the adversary adjudication for which fees and other expenses are sought.
(b) A request that the adjudicative officer 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.
S 12.307 Decision.
(a) The adjudicative officer shall issue an initial decision on the applicatlon within 90 days after completion of proceedings on the application.
If the adjudicative of ficer fails to issue an initial decision within 90 days.
he or she shall notify the parties of the reason for the delay and shell set a new deadline.
(b) The initial decision shall include written findings and conclusions on the applicant's el191bility and status as a prevailing party. and an explanation of the easons for any dif ference between the amount requested and the amount awarded.
The decision shall also include if at issue. findings on whether the NRC'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 respons,b111ty for payment of any award made among the agencles, and shall explain tne reasons for the allocation made.
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S_12.308 Agenc.y review.
(a) Either the. applicant or the NRC counsel may seek review of the initial decision oc the fee application, or the Cor, mission may decide to review the decision on its own initiative. in accordance with the Commission's review procedures set out in 10 CFR 2.786.
The filing of a petition for review is mdndatory for a party to exhaust its administrative remedies before seeking judicial review, if neither the applicant nor NRC counsel seeks o
. review and the Commission does not take review on its own initiative, the 7
initial decision on tht application shall become a final decision of the NRC forty (40) days after it is issued.
(b) Notwithstanding anything to the contrary in any other part of the Commission's regulations, the initial decision shall be inoperative (i.e.
the decision shall not be final and any award made shall not be paid) until the later of-(1)
The expiration of the forty-day period prcAided in paragraph (a) of this section; or (2)
If within the forty-day period provided in paragraph (a) of this.
section the Commission elects to review the decision. the Coxiission's-issuance of a final decision on review 01 the initial decision.
(c)
Whether to review a decision on its own motion is' a matter within the discretion of the Commission.
If review is taken, theLConmission will issue a final decision on the application or remand the application to the' adjudicative of ficer for further proceedings.
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L12.309 Judicial review.
judicial reslew of final agen:y cecisions on ar;ards may be sought as pron ded in 5 U.S.: 504(c)(2)
I
- 5. 1?.310 3 ynent of award.
tn ellcant seeking la / ment of an award shal\\ submit to the appropriate i-of ficTal of the paying mency a copy of the Ctamission's firal decision
(
grant 1ng the award accompanied by c certification that the applicent will not f_
seek revies of 1.he c? cision in the United States c3urts Wnere the award as
-u granted agalnst the CnTn11551on. th a', nlicant shall make the subm ssion to the Director Dinsion of Accounting anc Finance. Of f1te of tne Controller.
z U. '.
Nuclear Regulatory Comm Eslon. Washington. DC 20565.
The rRC vnli pay
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tre amount awarded to the applicant within 60 days.
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For the Nucle 3r Regulatory Conas;1on v...
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U11LA Secretary of the Commission Dated at Rockville Maryland, inis day of 1994 l
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ENCLOSUke 2 L
Draft Congressicnal Iette:
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7 OffiTED STATES
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NUCLEAR REGULATORY COMM'SSION g
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i The !!onorable Tom Devill Subcommittee on Energy and Water Development Committee on Appropriations Unitec. States llouse of Representativen Washington, D.C.
20515 Dear Mr. Chairman Enclosed for the information of the Committee la a copy of a notice of a final rule to be published in the Federa' Register.
The rule in designed to imple nent the Equal Access to Justice Act (EAJA),
5 U.S.C.
504.
The EAJA allown persons who prevail agadnat the Government in certain agency edjudicatory proceedings to recover attorney fees and other costa.
The Act requires agencica conducting proceedinga covered by the EAJA to establish by rule procedures for submission and consideration of applicationa for award of auch costa.
NRC's final-rule is, in large part, identical to a proposed rule the NRC published in the Federal Registet on August 2,
1993 (58 Fed. Reg. 41061).
11owever, some changen were made in response to commente received on the proposed rule.
These are discussed in the preamble for the final rule.
Sincerely, Willia.m C.
Parler General Counsel Enclosure Notice of Final Ruin cc:
The 11onorable John T. Myera
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