ML20046C021
| ML20046C021 | |
| Person / Time | |
|---|---|
| Issue date: | 07/27/1993 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| Shared Package | |
| ML20046C012 | List: |
| References | |
| FRN-46FR53189, FRN-58FR41061, RULE-PR-12 CCS, PR-930727, NUDOCS 9308090124 | |
| Download: ML20046C021 (23) | |
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14UCLEAR REGULATORY COMMISSION 10 CFR PART 12 RIN: 3150-AE61 Equal Access to Justice Act:
Implementation AGENCY:
Nuclear Regulatory Commission.
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ACTION:
Proposed rule.
SUMMARY
The Nuclear Regulatory Commission (NRC) is proposing to amend its f
regulations by adding new provisions designed to implement the Equal Access to i
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 substantially justified. A proposed rule to implement the EAJA was issued by the Commission in 1981, but no further action was taken on it. Because of the considerable period that has transpired since then, the Commission is withdrawing the 1981 proposed rule and replacing it with the rule now being proposed.
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l DATE:
The comment period expires [ insert date thirty days after publication in the Federal Register].
Comments received after this date will be considered if it is practical to do so, but the Commission is able to assure consideration only for comments received on or before this date.
4 930B090124 930728 EI PDR PR hJ.n 12 46FR53189 PDR
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I ADDRESSES:
Submit comments to:
Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention:
Docketing and Service Branch.
Hara deliver comments to:
11555 Rockville Pike, Rockville, Maryland between 7:45 a.m. and 4:15 p.m. Federal workdays.
Copies of comments received may be examined at the NRC Public Document Room, 2120 L Street, NW (Lower Level), Washington, DC.
FOR FURTHER INFORMATION CONTACT:
John Cho, Special Counsel, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
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telephone (301) 504-1585.
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SUPPLEMENTARY INFORMATION:
The Equal Access to Justice Act (EAJA) first became law on October 21, 1
1981 (5 USC 504).
The EAJA authorizes agencies to award attorney fees and other expenses to parties that prevail over an agency in certain agency proceedings under specified circumstances.
For an award to be made, the preceeding must be one that is " required by statute to be determined on the record." See Ardestani v. U.S.,
U.S.
,112 S.Ct. 515 (1991). A proceeding for the purpose of " granting or renewing "a license is not covered by the EAJA, but a proceeding " suspending, revoking, or amending" a license may be covered provided other requirements are met (5 USC 504(b)(1)(C)).
Oa October 28,1981 (46 FR 53189), the NRC published a proposed rule designed to implement the EAJA in the Federal Register.
The proposed rule was essentially patterned after a model rule issued by the Administrative Conference of the United. States (ACUS).
At the time of the NRC's publication, it was thought that the EAJA might have applicability to NRC proceedings P
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j relating to modification, suspension, or revocation of reactor licenses and.
that agency regulations governing awards authorized by the EAJA should be in place for use in the event the need for them arose.
From comments received on the proposed rule and upon further consideration by the NRC's Office of the General Counsel, serious doubt developed as to the need for these regulations.
A significant consideration in this regard was the impact of a statutory bar against the use of funds appropriated to the NRC "to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings." This provision 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.
The question of the NRC's authority to compensate intervenors under the EAJA for participation in agency adjudications was not judicially answered until 1986 by a decision of the United States Court of Appeals for the District of Columbia Circuit in Business and Professional people for the Public Interest v. NRC, 793 F.2d 1366 (D.C. Cir.1986). The court held that-NRC's 1982 App ropriations Act, section 502, precluded EAJA awards from the l
agency to parties intervening in NRC adjudications.
At about the time of the Court's decision, the ACUS issued its revised model rule (May 6, 1986; 51 FR 16665) (codified at 1 CFR Part 315). That action followed the expiration of the original EAJA on September 30, 1984 and its reenactment, with amendments, on August 5, 1985 (Pub. L. No. 99-80, 99 Stat. 193 (1985)).
Resolution of the funding question, eliminating intervenors as potential claimants for awards, largely removed the earlier perceived need for FAJA l
regulations.
In addition, the Office of the General Counsel began to have a
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serious reservations whether any NRC proceeding " suspending, revoking, or j
amending" a license, particularly that for a nuclear reactor, was a proceeding
" required by statute to be determined on the record."
In 1983,-a materials license amendment proceeding had been judicially held as not being required by statute; i.e., section 189(a) of the Atomic Energy Act, to be conducted "on the record." West Chicaao. Ill. v. U.S. Nuclear Reaulatory Commission, 701
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F.2d 632, 641-45 (1983).
There, the court had declined to read section 189(a) as requiring "on-the-record" hearing, in the absence of clear Congressional'
" intent to trigger the formal on-the-record hearing provisions of the APA."
i Id. at 641.
Because a similar observation appeared applicable as well to reactor license proceedings, it appeared that no license proceeding of any kind conducted by the agency was covered by the EAJA.
Later, judicial decisions such as Chevron U.S. A. v. Natural Resources Defense Council, 467 U.S. 837, 843 (1984) and Chemical Waste Manaaement Inc. v. Environmental Protection Aaency, 873 F.2d 1477, 1482 (D.C.'Cir. 1989) gave greater j
confidence that an interpretation of section 189(a) to that effect would find judicial support.
(The Commission since has gone on record that it interprets section 189a as not requiring formal hearings in reactor licensing r
proceedings.
En Banc Brief for Respondents dated August 30, 1991 (filed in the U.S. Court of Appeals for the District of Columbia Circuit, No. 89-1381, i
Nuclear Information and Resource Service v. NRC, at pp 32-38.).
Consequently, i
no further action was taken on the proposed EAJA rule, With the enactment of the Inspector General Act Amendments of 1988 (Pub. L.100-504,1102 Stat. 2515) establishing, inter alia, an Office of the Inspector General in the NRC, the NRC became subject to the Program Fraud Civil Remedies Act (5 USC Appendix 3).
That act at section 3803(f) 4 t
specifically requires any hearing under it to be " conducted by the presiding officer on the record." Those hearings are therefore covered by the EAJA.
Following notice and comment rulemaking, the NRC published its final rule under the Program Fraud Civil Remedies Act which became effective on October 18, 1991.
(September 18, 1991: 56 FR 47132). As a result, there is good reason for the Commission to proceed with implementation of the EAJA.
Because of the length of time that has gone by since the October 28, 1981 proposed rule was issued, the Commission is withdrawing it and replacing it with the rule that is now being proposed. This new proposed rule is essentially similar to the final model rule suggested by the ACUS for agency adoption.
(May 6, 1988; 51 FR 16665).
Any differences in wording are generally minor, consisting mainly of the substitution of words such as "this agency" in the model rule to "the Commission" in this proposed rule.
In i
5 12.103, relating to NRC proceedings that are covered by the EAJA, only one l
type of proceeding is listed:
proceedings under the Program Fraud Civil I
Remedies Act.
Whether any other type of agency proceeding is covered is left for case-by-case determination.
Under the final ACUS model as well as the proposed rule, failure to identify a particular type of proceeding as being covered does not preclude the filing of an application by a party who believes the proceeding is covered by the EAJA.
Environmental Impact:
Categorical Exclusion The NRC has determined that this proposed 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 been prepared for this proposed rule.
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Paperwork Reduction Act Statement The collection of information this proposed rule contains is exempt from the Paperwork Reduction Act of 1980 (44 U.S.C. 3518(c)(1)) because the information is being gathered in support of a civil action to which the United States or an agency or an official of the United States is a party (i.e. a court action) or an administrative action or investigation involving an agency against a specific individual or entity (e.g. an agency hearing) (44 U.S.C.
3518(c)(1)(B)).
Regulatory Analysis
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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 have in place procedures to govern the receipt and determination of applications for EAJA fees.
Codifying these procedures is preferable to the only other alternative, which would be to establish t
procedures on a case-by-case basis. Moreover, the procedures adopted mirror in all important respects the model rule promulgated by the ACUS as an aid to facilitating 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. 504(c)(1).
These procedures are preferable to other i
I procedural requirements that might be imposed.
The foregoing discussion constitutes the regulatory analysis for this final rule.
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i Regulatory Flexibility Certification i
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 i
or burdens.
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Backfit Analysis i
The NRC has determined that the backfit rule,10 CFR 50.109,- does not apply to this proposed rule, because these amendments do not involve any l
1 provisions which would impose backfits as defined in 10 CFR 50.109(a)(1).
List of Subject Terms in 10 CFR Part 12
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Adversary adjudications, Award, Equal Access to Justice Act, Final t
disposition. Net worth, Party.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, the NRC is proposing to adopt a new J' 'rp Part i
12.
f 1.
A new Part 12 is added to 10 CFR Chapter I to read as follows:
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PART 12 - IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN AGENCY PROCEEDINGS e
Subpart A - General Provisions Sec.
l 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 - Information Required From Applicants 12.201 Contents of application.
12.202 Net worth exhibit.
12.203 Documentation of fees and 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.
12.304 Comments by other parties.
1 12.305 Settlement.
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- 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.
4 504(c)(1); Pub. L. 99-80, 99 Stat. 183.
Subpart A - General Provisions 6 12.101 Purpose.
The Equal Access to Justice Act, 5 U.S.C. 504 (EAJA), provides for the award of attorney fees and other expenses to eligible individuals and entities l
who are parties to certain administrative proceedings (called " adversary-adjudications") before the Nuclear Regulatory Commission. An eligible party may receive an. award when it prevails over the Commission, unless the Commission's position was substantially justified 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 procedures and standards that the Commission will use to make them.
i 4 12.102 When the EAJA applies.
The EAJA applies to any adversary adjudication pending or commenced i
t before the Commission on or after August 5, 1985.
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6 12.103 Proceedings covered.
(a) The EAJA applies to adversary adjudications conducted by the Commission.
These are:
(1) Adjudications under 5 U.S.C. 554 in which the position of the NRC or any other agency of the United States, or any component of an agency, is presented by an attorney or other representative who enters an appearance and participates in the proceeding; and (2) Appeals of decisions of contracting officers made pursuant to section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) before agency boards of contract appeals, as provided in secticn 8 of that Act (41 U.S.C.
607).
Any proceeding in which the NRC may prescribe a lawful present or future rate is not covered by the EAJA.
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."
Proceedings under the.
Program Fraud Civil Remedies Act (31 U.S.C. 3801-12), are covered by the EAJA.
(b) The NRC's failure to identify a type of proceeding as an adversary i
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 i
application.
(c) If a proceeding includes both matters covered by the EAJA and f
matters specifically excluded from coverage, any award made will include only fees and expenses related to covered issues.
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s 512.104 Elicibility of applicants, j
(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 i
for which it seeks an award.
The term " party" is defined in 5 U.S.C. 551(3).
l The applicant must show that it meets all conditions of eligibility set out in this subpart and in subpart B.
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(b) The types of eligible applicants are as follows:
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(1) An individual with a net worth of not more than $2 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 ~
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not 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; i
(4) A cooperative association as defined in section 15(a) of.the Agricultural Marketing Act (12 U.S.C. Il41j(a)) with not more than 500
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I employees; and (5) Any other partnership, corporation, association, unit of local government, or organization 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 j
employees of an applicant shall be determined as of the date the proceeding i
was initiated.
l (d) An applicant who owns an unincorporated business will be considered i
a as an " individual" rather than a " sole owner of an unincorporated business" if 11 j
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the issues en 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 renumeration for the applicant, under the applicant's direction and control.
Part-time employees shall be included on a proportional basis.
t (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 t
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 officer may determine.that financial relationships 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 or more other persons or entities that would be ineligible is not itself eligible for an award.
6 12.105 Standards for awards.
(a) A prevailing applicant may receive an award for fees and expenses i
incurred-in connection with a proceeding or a significant and discrete substantive portion of the proceeding, unless the position of.the Commission 12
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over which the applicant-has prevailed was substantially justified.
The position of the Commission includes, in addition to the position taken by the Commission 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 circumstances make the award sought unjust.
4 12.106 Allowable fees and expenses.
1 (a) Awards will be based on rates customarily charged by persons engaged j
in the business of acting as attorneys, agents and expert witnesses, even if i
the services were made available without charge or at reduced rate to the l
1 applicant.
1 (b) No award for the fee of an attorney or agent under these rules may exceed $75.00 per hour. No award to compensate an expert witness may exceed the highest rate at which the Commission pays expert witnesses. However, an award may also include the reasonable expenses of the attorney, agent, or witness as a separate item, if the attorney, agent 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:
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i (1) If the actorney, agent or witness is in private practice, his or her I
t customary fees for similar services, or, if an employee of the applicant, the fully allocated costs of the services; 3
(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 j
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 behr.if of a party may be awarded, i
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.
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4 12.107 Rulemakina on maximum rates for attorney fees.
(a) If warranted by an increase 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 providing that attorney fees may be awarded at a rate higher than $75 per hour in some, 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 T
requirements of 10 CFR 2.802.
The petition should identify the rate the 14 2
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.
The Commission will act on the petition in accordance with 10 CFR 2.803.
6 12.108 Awards acainst other agencies.
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.
612.109 Decisionmaking 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 adjudication. That official or decisionmaking body is referred to in this part as the " adjudicative officer."
Subpart B - Information Required From Applicants 6 12.201 Contents of application.
l (a) An application for an award of fees and expenses under the EAJA 1
shall identify the applicant and the proceeding for which an award is sought.
The application shall show that the applicant has prevailed and identify the position of the Commission or other agency that the applicant alleges was not substantially justified.
Unless the applicant is an individual, the 15 i
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application shall also state the number of employees of the applicant and i
describe briefly the type and purpose of its organization or business.
l (b) The application shall also include a statement that the applicant's l
net worth does not exceed $2 million (if an individual) or 57 million (for all other applicants, including their affiliates). However, an applicant may omit this statement if:
(1) The applicant 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-I exempt organization not required to obtain a ruling from the Internal Revenue Service on its exempt status, a statemnt that describes the basis for the applicant's belief that it qualifies under this section; or i
(2) The applicant states that it is a cooperative association as defined I
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 sought.
(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.
6 12.202 Net worth exhibit.
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(a) Each applicant, except a qualified tax-exempt organization or l
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 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 part.
i The adjudicative officer may require an applicant to file additional information to determine its eligibility for an award.
(b) Ordinarily, the net worth exhibit will be included in the public record of the proceeding.
However, an applicant that objects to public i
disclosure of information in any portion of the exhibit and believes there are
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legal grounds for withholding it from disclosure, may submit that portion of i
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 i
sought to be withheld and explain, in detail, why it falls within one or more of the specific exemptions from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552(b)(1)-(9), why public disclosure of the
-information would adversely affect the applicant, and why disclosure is not 7
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 adjudicative officer finds that the information should not be withheld from disclosure, it shall be placed in the public record of the proceeding, j
Otherwise, any request to inspect or copy the exhibit shall be disposed of in 17
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i accordance with the Commission's established procedures under the Freedom of Information Act, 10 CFR Part 9, Subpart A.
6 12.203 Documentation of fees and expenses.
The application shall be accompanied by full documentation of the fees and expenses, including the cost of any study, analysis, engineering report, test, project or similar matter, for which an award is sought. 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 at which each fee has been computed, any expenses for which reimbursement is sought, the total amount claimed, and the total amount paid or payable by the applicant or by any other person or entity for the services provided. The adjudicative 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.
6 12.204 When an application may be filed.
(a) An application may be filed whenever the applicant has prevailed in the proceeding or in a'significant and discrete substantive portion of the 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 18
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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
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which an applicant believes it has prevailed, proceedings for the award of fees shall be sta>cd 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 i
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.
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I Subpart C - Procedures for Considering Applications l
I 6 12.301 Filina and service of documents.
Any application for an award or other pleading or document related to an application shall be filed and served on all parties to the proceeding in the same manner as other pleadings in the proceeding, except as provided in 512.202(b) for confidential financial information.
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6 12.302 Answer to aoolication.
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(a) Within 30 days after service of an application, counsel representing i
the NRC against which an award is sought may file an answer to the application. Unless the NRC counsel requests 2a extension of time for filing l
or files a statement of intent to negotiate under paragraph (b) of this 19 i
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t a consent to the award requested.
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t (b) If the NRC counsel and the applicant believe that the issues in the i
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 l
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the time for filing an answer for an additional 30 days, and further j
extensions may be granted by the adjudicative officer upon request by the NRC i
counsel and the applicant.
(c)
The answer shall explain in detail any objections to the award j
I requested ano identify the facts relied on in support of the NRC counsel's j
position.
If the answer is based on any alleged facts not already in the I
record of the proceeding, the NRC counsel shall include with the answer either j
supporting affidavits or a request for further proceedings under 5 12.306.
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6 12.303 Reply.
Within 15 days after service of an answer, the applicant may file a f
i reply.
If the reply is based on any alleged facts not already in the record
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of tha proceeding, the applicant shall include with the reply either 3y supporting affidavits or a request for further proceedings under s 12.306.
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f 6 12.304 Comments by other parties.
I Any party to a proceeding other than the applicant and the NRC' counsel t
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 l
participate further in proceedings on the application unless the adjudicative i
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officer determines that the public interest requires participation in order to permit full exploration of matters raised in the comments.
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6 12,305 Settlement.
t 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.
l_12,306 Further proceedinos.
f (a) Ordinarily, the determination of an award will be made on the basis l
I of the written record. However, on request of either the applicant or the NRC counsel, or on the adjudicative officer's own initiative, the adjudicative I
officer may order further prcceedings, such as an informal conference, oral argument, additional written submissions or, as to issues other than substantial justification (such as the applicant's eligibility or substantiation of fees and expenses), pertinent discosery or an evidentiary hearing.
Further proceedings shall be held only when necessary for full and fair resolution of the issues arising from the application, and shall be conducted as promptly as possible.
Whether or not the position of the agency i
was substantially justified shall be determined on the basis of the l
administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought.
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,t (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.
6 12.307 Decision.
The adjudicative officer shall promptly issue an initial decision on the application after completion of proceedings on the application. The eacision shall include written findings and conclusions on the applicant's eligibility and status as a prevailing party, and an explanation of the reasons for any difference between the amount requested and the amount awarded. The decision i
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 responsibility for payment of any award made amo u the agencies, and j
shall explain the reasons for the allocation made.
6 12.308 Acency review.
Either the applicant or the NRC counsel may seek review of the initial decision on the fee application, or the NRC may decide to review the decision on its own initiative, in accordance with the Commission's regular review procedures set out in 10 CFR 2.786.
17 neither the applicant nor NRC counsel seeks review and the Commission does not take review on its own initiative, the initial decision on the application shall become a final decision of the NRC forty (40) days after it is issued. Whether to review a decision is a i
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e matter within the discretion of the Commission.
If review is taken, the Commission will issue a final decision on the application or remand the application to the adjudicative officer for further proceedings.
i_1?JO9 Judicial review.
Judicial review of final agency decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2).
5 12.310 Payment of award.
An applicant seeking payment of an award shall submit to the appropriate official of the paying agency a copy of the Commission's final decision granting the award, accompanied by a certification that the applicant will not seek review of the decision in the United States courts. Where the award is I
granted against the Commission, the applicant shall make the submission to the-
.l Director, Division of Accounting and Finance, Office of the Controller,
]
U.S. Nuclear Regulatory Commission, Washington, DC 20555.
The NRC will pay the amount awarded to the applicant within 60 days.
d Dated at Rockville, Maryland, this N day of 1993.
a
(
F r the Nuclearqegulatory Commission.
/
W N
" JEL J. CHILK, Secretary of the :ommission.
K 23 i
1 CONGRESSIONAL CORRZSPONDENCE SYSTEX DOCUMINT PREPARATION CHECKLI3T This etecklist is be submitted with each document (or group of Qs/As) sent for.
ing into the CC3.
/
b[Id
/
/
1 A) C
,# '/b I
C 1.
BRIEF DESCRIPTION OF DOCCXENT(S)
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y' 2.
TTPZ' OF-DN IN Correspondenoem-Noaringsur(Qsf&ab 3.
DoCUx1xT CONTROL sensitive (NRC Only) Y Non-sensitive 4.
CONGRESSIONAL COMMITTEE and SUBCCXXITTEES (if applicable)
Congressional Committee Subcommittee t
5.
SUA7ECT CODES (a)
(b)
(c) 6.
SOURCE OF DOCUMENTS (a) 5520 (document name _
(b)
/
Scan.
(c)
Atlachments (d)
Rakey (a)
Other 7.
SYSTEM, LOG DATES fy l(I'j! ~ q'l '7 Date och sent docunent to ces f I (a)
(b)
Data CCS receivess document (c)
Data returned to OcA for additional information (d)
Data resubmitted by-CCA to ccs (a)
Data entered into CCS by,
~
(f)
Date OCA notified that document is in ecs 8.
CoxxExTs 0500E M