ML20054M301
| ML20054M301 | |
| Person / Time | |
|---|---|
| Issue date: | 07/02/1982 |
| From: | Norry P, Scott R NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| Shared Package | |
| ML20054M299 | List: |
| References | |
| NUDOCS 8207120257 | |
| Download: ML20054M301 (42) | |
Text
e RE2UEST FOR OMB REVIEW (Undst ths hperwork Reduction Act and Exccutiva Ord:r 12291)
Imp rt:nt - Read instructions (SF-83A) tiefore completing this Office of Information and Regulatory Affairs form. Submit the required number of copies of SF 83.together Office of Management and Budget with the material for which review is requested to:
Washington, D.C. 20503
- 1. Deprtment/ Agency and Bureau / Office originating request
- 3. Name(s) and telephone number (s) of person (s) who can best answer questions regarding request U.S.
Nuclear Regulatory Commission Paul Bollwerk (202) 634-3224 2.6-digit Agency / Bureau number (firstpart of 11 digit Treasury
- 4. 3-digit f unctional code llast part of 11-digit Treasury Account Account No I No)
__3_ _L _5_ _0_ ___.__
__N]A __
$ Titie of information Collection or Rulemaksng C. Is this a rutemakong submsssoon under Section 3504 th) ot PL 96 511 ? (Check one) 1 % No tSection 3507 submission)
Equal Access to Justice Act, 10 CFR 2 2 0 Yes.NPRM. Expected date oloublication:
6 A Is any onformation collection (reporting or recordkeepong) 3 0 Yes. final rule. Espected date nt oushcatscn:
involved? (Check one)
Ettective date.
1 g Yes and proposal is attached for review D. At what phase of rulemakingist this submission made?
2 O Yes but proposalis not attached - slop to question D.
3 O No - skip to Question D.
1 O Not applicable B. Are the respondents promarily educationalagencies or 2 O Major rule.at NPRM stage onstitutions or os the purpose related to Federaleducation 30 Maior Final rule for which no MPRM was published programs ?
4 O Major Final rute.after publicabon of NPRM O Yes TJ No 5 0 Nonmajor rule, at NPRM stage 6g Nonmajor rule. at Final stage COMoLETE SH ADED PORTION IF INFORM ATION COLLECTION PROPOS ALIS ATTACHED
- 7. Current (or former) OM B Number
- 8. Requested
- 12. Agency report form number (s),,g Q,,,;, _ _
Expiration Date N/A Expiration Date.
- 13. Are respondents only FederalJtgencies.7; O Yes E No
- 9. Is proposed information collection listed in
- 14. Type of request (Check one) the information collection budget?
O Yes G No 1 O prehminary plan
- 10. Will this proposed information collection 2 O new (notprevuously approved or exputed more than 6 months c1urs the agency to exceed its information -
- agoli &
C -~ *C MC ^"
colixction budget allowance? (If yes, attach O Yei M No 3 0 revision -
1 smendment request from agency head) 4 O eptension (adiustment to burden only) l
- 11. Number of report forms submitted for approval 5 0 extension (no change) 6 O reinstatement (expored wrrhin 6 months) 15.
- 16. Classification of Change in Burden (explainin supporting statement) e Appron' mate si e of t
univers7 ha samtwe)
No of Responses No.of Reporting Hours Cost to the Pubhc osireevumee 6
- a. in inventory 0
0 s
e tsi. mated number of
- b. As proposed 6
150 S
responents or record s eper oer vear 6
- c. Dif ference (b-a) 6 150 S
d Reporis annus'fy by each Explanation of difference (indicate as many as apply)
,l, rssocndant 6 tem 751 -
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~
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i 1
Adjustments e to41saavoiresponses
- r. rem f 5c : i$dl, d Correction-error i
i 15 g
- e. Correction-reestimate i 1
15 t t stimsted everage nr der et riours 4
- f. Change in use 30 Program changes g Est,rrated totelhours ot onnuv eurden en g increase
+
6 150
- S
+
l F scsl Year l
raem rte n 75#1
)g ease 820712025/ 820702
-S PDR ORo EUSOMhDR staeaworm e3 mso For Use Begmning 4/1/81
1 SUPPCRTING STATEMENT FOR REGULATIONS TO IMPLEMENT EQUAL ACCESS TO JUSTICE ACT 1.
Justification Effective October 1, 1981, under the Equal Access to Justice Act (EAJA), Pub. L. No.96-481, 5 U.S.C.
S 504, prevailing parties in NRC adversary adjudications can apply to the agency for an award of fees and expenses.
Such an award can be made if the presiding official determines that the agency's position was not substantially justified.
The Act specifically sets forth certain net worth and other requirements that a prevailing party must meet and requires that the party file an application that both shows the party is eligible for an EAJA award and indicates by way of an itemized statement what fees or expenses are claimed.
5 U.S.C. S 504 (a) (1).
In order to implement this statutory mandate, the NRC's rule will require the filing of an application and accompanying itemized statement of fees and expenses.
The information supplied by the applicant will be used by the other parties to the agency proceeding, including the ag'ency staff, to prepare responses to the request for an award and by the presiding official or officials to
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determine whether an award is justified.
Similar information that might be submitted by the same applicant in seeking an EAJA award in another adjudication before the NRC or some other agency would not be sufficient because the Act provides that an applicant's eligibility is to be determined as of the time the particular proceeding is instituted and because the information that is supplied relevant to the question of whether the agency has substantially prevailed and to the amount of the fee award requested will depend on a
the circumstances of the particular proceeding.
While the Act's net worth and employee limitations make
.it quite likely that individuals and entities employing fewer than 300 persons will be respondents and.it is likely the applications will take in excess of one-half hour to prepare, the information requested is needed to ensure that the requirements of the act are satisfied in order to authorize an award of government funds.
The Commission's rule will also require that copies of any application be provided to all parties to the adversary proceeding, including the agency's staff, and that an original and two copies be provided to the Office of the Secretary.
This copy requirement is in line with the standard Commission rules on filing and service in all agency adjudications.
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Description of Information Collection The information required from applicants is described in sections 2.1010.1013, which are based on Model Rules issued by the Administrative Conferen[ce of the United States, 46 Fed. Reg. 32900 (June 25, 1981).
These provisions are designed to elicit information to enable a presiding officer, as well as the other parties to an adjudication, to determine if the individual or entity applying meets the EAJA's qualifications for an award and to determine the amount and justification for the fees and expenses claimed.
No standard application form will be required; rather, the necessary information may be supplied in a manner that is consistent with the Commission's standard rule for the submission of documents in adjudications.
10 CFR S 2.708.
The applicant's submission is to. indicate the identity of the applicant, the proceeding for which an award is sought, the applicant's status as a prevailing party, and the position of the agency in the proceeding that was not substantially justified.
In addition, in the case of an individual, he must state that his net worth does not exceed
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the EAJA limitation of $1 million.
An organization or business entity must state the number of its employees, describe briefly the type and purpose of its organization or business, and indicate that its net worth does not exceed the EAJA limitation of $5 million or that it is a tax-exempt organization or an agricultural cooperative association.
The total amount of fees and expenses sought must also be l
stated.
In addition, unless it is a tax-exempt organization or cooperative association, the applicant must supply a detailed exhibit, in a form convenient to the applicant, that will provide full disclosure of assets and liabilities sufficient to allow a determination of net worth.
- Finally, there must be an itemized statement of the fees and expenses sought.
This application, net worth statement, and itemized statement of fees and expenses may be submitted when the underlying adversary adjudication has been finally l
determined by the agency and no judicial review is being sought.
The Act's applicability is limited in the case of NRC l
adjudications; only proceedings for the revocation, suspension, amendment, or modification of reactor licenses I
appear to be covered.
An estimate of the Administrative l
Conference of the United States based on the Uniform l
Caseload Accounting System indicates that only approximately six proceedings a year will be adversary adjudications in which eligible, prevailing applicants will be participating l
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so as to submit an EAJA request.
The number of individuals or entities involved thus will be quite low, limited to perhaps a half-dozen per year.
Although this estimate does not exceed the statutory minimum of ten respondents, because of uncertainty about the exact number of respondents involved, the agency has decided to submit the_ rule for OMB paperwork reduction review.
In line with the Commission's current practices regarding documents filed in the official record of adjudicatory proceedings, all EAJA applications will be retained in the active files of the Docketing and Service Branch of the Office of the Secretary for two years and then will be retired to inactive status in NRC facilities in Bethesda, Maryland, where they will be retained indefinitely.
All EAJA applications will be made part of the public record, consistent with Commission practice concerning submissions in adjudicatory proceedingr.
The Privacy Act will not be 6pplicable to the information filed because it will not be maintained in a " system of records" as. defined by the Act, 5 U.S.C. S 552a (a) (5).
The Administrative Conference of the United States is required by the EAJA to prepare an annual report for Congress to help it evaluate the scope and impact of the Act.
5 U.S.C. S 504 (e).
The Act also directs each agency to provide the Chairman of the Administrative Conference with such information as is necessary to allow him to comply with that reporting requirement.
The Administrative Conference has requested agency data on a quarterly basis for compilation of the annual report.
The only present agency intention to tabulate and publish data derived from the EAJA award applications would be to comply with an Administrative Conference request, although inclusion of similar material in the NRC's Annual Report is a possibility.
3.
Estimate of Compliance Burden Because of the potential difference in the types of applicants (i.e. an individual citizen as opposed to a corporation with a net worth of up to SS million and up to 500 employees) there may be a broad range of burdens imposed on applicants.
The regulations have been drawn, however, to minimize this burden by allowing the applicant to submit the information in a form convenient to him, so long as the data is sufficient to show eligibility under the act and the amount of and justification for the fees and expenses sought.
Less time to draw up a complete application would probably be needed by many individual applicants than by I
4 organizations or businesses.
The individual's net worth exhibit might consist merely of a copy of the most recent income tax statement supplemented to show current income and holdings and his itemized expense sta.tement may consist only of compilation of the various bills submitted for legal and other services.
To the extent that the finances of business entities are likely to be_more complicated, more time for application preparation will be required.
Considering this range of applicants, the average total annual compliance burden, on the basis of six applications iiled in one year, is estimated to be 150 hours0.00174 days <br />0.0417 hours <br />2.480159e-4 weeks <br />5.7075e-5 months <br />. If the applicant uses the services of a lawyer or some other professional to compile the application, completion costs for the application are estimated to be $1,500.
4.
Estimate of Cost to Federal Government Because the few applications expected to be submitted by~ individuals or entities will be collected and retained by agency personnel in accordance with~ existing procedures, the collection and recordkeeping costs tdthe agency are estimated to be minimal, amounting to approximately S1,000 per year or less.
A larger expense, however, may be in the cost of analyzing the data, both by the agency's staff in filing an answer to the award application and by the presiding officer or officers (in the case of a three-person Atomic Safety and Licensing' Board) in -considering the application and issuing a written determination about the propriety of any award.
The annual cost of such agency action on six applications per year is estimated to be approximately $18,000.
On the whole, the impact of the EAJA reporting requirements upon the agency's information collection budget will be minimal.
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NUCLEAR' REGULATORY COMMISSION
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10 CFR Part 2 Procedures Involving the Equal. Access to Justice Act: Implementation AGENCY:
Nuclear Regulatory Comission.
ACTION:
Final Rule.
SUMMARY
The'Comission is amending its rules of practice to add new provisions designed to implement the Equal Access to Justice Act, Pub.
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L.96-481.
That Act provides for the award of fees and expenses to certain individuals and businesses that prevail in agency adjudications in which the agency's position is determined not to have been substantially justified.
EFFECTIVE DATE:
Effective upon publication in the Federal Register.
SUPPLEMENTARY INFORMATION: On October 28, 1981, the Comnission published in the Federal Register (46 FR 53189) a proposed rule designed l-to implement the Equal Access to Justice Act (EAJA). Under the;EAJA's l
provisions, individuals and business entities meeting certain' net worth and other requirements may be awarded fees and expenses incurred in
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connection with agency " adversary adjudications" if they prevail over the agency.
5 U.S.C. 504'A The proposed rule was based in large part on a draft model ru'e sur by the Administrative Conference of the l
United States on Jur.c 25,1501 (46 FR 32900) to aid agencies in fulfilling the EAJA's suggestion that " uniform procedures for the l
l submission and consideration of applications for an award of fees and r
other expens.es" be established, 5. U.S.C. 504(t)(1).
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Several commenters raised questions concerning the Act's applicability to the various t.ypes of licensing proceedings conducted by the agency.
Both the Southwest Research and Information Center (SRIC) and commenter Susan L. Hiatt questioned why proceedings for the granting or renewal of a license are not covered.
This is especially troubling, according to Ms. Hiatt, because intervenor parties seeking fees often are urging that the license be denied or not renewed.
It is clear from the language of the EAJA that "an adjudication for the purpose of...
granting or renewing a license" is not to be considered an adversary adjudication.
5 U.S.C. 504(b)(1)(c).
TherSfore, the Comission is precluded by statute from making EAJA award ^s' in proceedings for-.the granting or renewal of licenses.
Moreover, as the ACUS comments',
accompanying its model rule i'ndicate', the fact that one party to the pr'oceeding is. urging that a license be denied or not renewed does not change the riature of the proceeding from one for the " granting or renewing of a license" that is otherwise excluded from coverage under the EAJA.
46 FR at 32901.
Covered licensing proceedings are thus limited to those involving the " suspension, annulment, withdranel, limitation, amendment, modification or conditioning of'a license."
H.R.
Rep. No. 96-1418, supra at 15; S. Rep. No.96-253, supra at 17.
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SRIC also stated that it believed domestic materials licensing cases should be covered as adversary adjudications.
However, the Comission's decision in kerr-McGee Corp. (West Chicago Rare Earth Facility), CLI-82-2, 15 NRC (1982), explained that the " hearing" requirsment of section 189a of the Atomic Energy Act of 1954, 42 U.S.C.
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I.
Comments Submitted As a result of publication of the proposed rule in the Federal Register, the agency received six comments that raised substantive questions concerning particular provisions of the proposed rule.
The Environmental Law Project of the University of North Carolina questioned whether the requirement in 5 2.1010(a) of the proposed rule that the applicant " identify the position of an' agency or agencies in the proceeding that the applicant alleges was not substantially justified" may be interpreted to require that the applicant assume the burden of showing that the position was not justified.
It should be noted, however, that 5 2.1002(a) of the rule provides that the " burden of proof
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that an award should not be made to an eligible prevailing applicant is on the agency staff....." The allocation of this burden of proof is clear from the legislative nistory of the EAJA. 'H.R. Rep. No. 96-1481, i
96thCong.,2dSess.10-11(1980); S. Rep. No.96-153, 96th Cong., 1st Sess.6(1979)(staredition).
However, it should be noted that, contrary to the Environmental Law Project's additional assertion that l
"[he award of fees should be fairly automatic upon the parties' prevailing over the agency," the EAJA's legislative history makes it clear that shiply because the Government lost the case, there is no presumption tha,t its position was not substantially justified so as to sanction a fee award.
H.R. Rep. No. 96-1481, supra at 11; S. Rep.
No.96-253, supra at 7.
An additional sentence has been added to l
5 2.1002(a) to clarify this point.
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2239(a), does not require a fonnal hearing under section 554 of the Administrative Procedure Act. 5 U.S.C. 554(a), with regard to materials licenses.
Therefore, those proceedings do not qualify as adversary adjudications under the EAJA.
In this same vein, both.the Union of Concerned Sci,ntists (UCS) and ACUS suggested that the rules list the proceedings covered by the EAJA.
Nonetheless, after careful consideration we have decided to retain the language proposed in 5 2.1000 that denominates generally the Act's requirements for coverage without specifying which particular NRC proceedings are included.
As the Kerr-McGee Corp. decision indicates, the question of the meaning.of section 189a's hearing requirement in terms'of whether a formal,
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on-the-record hearing is required under section 554 of the APA in.
particular licensing cases is one that is subject to some uncertainty and any ambiguities are best resolved on a case-by-case basis.
In its comments, UCS also challenged the Comission's stated unwillingness to deem the EAJA applicable in instances when a formal hearing is provided by regulation rather than statute, so that sEction 554 is not applicable.
As was noted in the statement accompanying the NRC's proposed rule (46 FR at 53190 n.'2), ACUS resolved this question in favor of excluding those proceedings (46 FR at 32901).
We agree with the ACUS reasoning that, in light of the narrow construction that must be given the EAJA because it constitutes a waiver of sovereign immunity, that interpretation would go beyond the intent of Congress.
Accordingly, we decline to extend EAJA applicability to proceed'ings in which a fomal proceeding is afforded only by regulation.
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Besides commenti.ng on the question of EAJA app'licability to particular NRC proceedings, UCS also suggested that changes be made to shorten the'1ength of time afforded for an initial decision on a fee award and for agency appellate review of'that awardL In addition, UCS urged that prevailing parties be allowed to proceed on a fee application in instances when they have prevailed on a discrete issue that is not appealed to a court.
As to the UCS suggested timing changes, we believe that the forty-five-day period afforded for an initial decision is reasonable in light of the complexity of the legal and factual issues that are likely to arise with regard to fees under the EAJA.
- Further, we see no reason to impose filing and decisional time requirements different from those now applicable to appellate review in other]
instances under Part 2.
On the question of prevailing on discrete issues, however, after consideration it appears that an additional
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change is in order.
If, upon final disposition of a proceeding, a party l
feels it has prevailed as to a significant, discrete, and substantive portion of'that proceeding for which no party to the proceeding is se' eking review, then in the discretion of the presiding officer, a fee application can be filed and processed.
Language has been added to i
9 2.1013 to indicate the change.
It should be noted that nothing in this section, or under the other provisions of Subpart J, are intended to change the Commission's rules or practice with regard to interlocutory appeals.
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ACUS also suggested that we specify the effective dates of the EAJA in the rule and list a specific figure for the highest rate at which an expert witness is paid. As to the former, we have added a paragraph (b) to i 2.1000 that specifies the applicable dates.
With regard to the latter, the notice for the proposed rule expressed concern that quoting
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a definite figure might require numerous changes as revisions occurred in that rate.
To provide a clearer indication of the ceiling figure for an expert witness, without creating a provision that will require constant revision, the pertinent portion of 5 2.1003(b) has been revised to indicate, in line with NRC Manual Appendix 4139, that the highest
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rate for direct compensation of an expert witness cannot exceed..the
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maximum rate payable for a GG-18 employee.
At present, that rate is
$27.64 per hour.
Another commenter, Middle South Services, Inc., questioned whether a provision of the recent NRC appropriations act will bar NRC compensation under the EAJA for intervenors who are prevailing parties in' adversary adjudications.
The pertinent congressional enactment is th'e Energy and Water Development Appropriation Mt.1982, Pub. L. 97-88, 95 Stat. 1135 (1981), which states in section Su2 that "[n]one of the funds in this Act shall be used to pay the expenses of, or otherwise i
compensate, parties intervening in regulatory or adjudicatory proceedings funded in this Act."
In his May 15, 1981 comments to ACUS on its proposed model rules, the Acting Comptroller General of the United States indicated that under 5 U.S.C. 504'd)(1), EAJA awards should come from agency funds rather
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than the permanent judgment appropriation established by 31 U.S.C. 724a to pay judgments against the United States.
Under section 502 of the appropriations measure, however, the agency is barred from using any of 9
the funds appropriated t'o it for fiscal 1982 "to pay the expenses of, or othemise compensate, intervenors." The broad language of this subsequent enactment indicates that NRC appropriated funds cannot be paid to intervenors othemise entitled under the EAJA.
Whether funds from the permanent judgment appropriation are available for such an EAJA award is an open question.
In order to alert parties to the potential payment problem raised by the 1982 appropriations measure, an additional
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paragraph has been included in 6 2.1029 that reiterates the language of section 502.
II.
Additional Revisions l
IIn the course of its consideration of revisions to the proposed EAJA rule, the Commission also studied a number of the rules and I
proposed rules promulgated by other federal agencies to implement the Act.
B'ecause of the obvious importance of the Department of Justice's i.
(D0J) interpretations of the EAJA, of particular interest was the DOJ l
final rule published on April 13,1982 (47 FR 157.74) and codified at 28 CFR Part 24.
As a result of that review it was determined that several changes or additions were in order.
First, the language in i 2.1002 concerning "special circumstances" that make an award sought unjust has been moved from paragraph (b) to l
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paragraph (a), in line with 5 24.105 of the D0J rule.
This change more accurately reflects the language of 5 U.S.C. 504(a)(1) and (3).
- Also, in line with D0J l 24.201, minor additions. have been made to i 2.1010(a)-(b) of the NRC's rule to indicate clearly that the information on number of employees and net worth supplied in' a fee
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application must reflect the applicable figures at the time the adversary adjudication was initiated.
A change has also been made in paragraph (e) of the NRC rule to require that the applicant must sign the application with respect to its eligibility and any attorney or representative of the applicant must sign the application.with respect to'the fees and expenses sought. -This is designed to ensure that those
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,f' having primary responsibility for necessary EAJA information are fully aware of what is being submitted to the presiding officer.
A slight wordi.ng change has also been made in the sentence concerning written verification under oath to further clarify what is an acceptable statement.
Some of the more substantial revisions to the proposed rule are f' und in i 2.1011 concerning an applicant's net worth exhibit and were o
made after review of D0J i 24.202.
Specifically, in an effort to prevent an otherwisc ineligible applicant from manipulating its net worth in anticipation of an adjudicatory proceeding, an additional
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provision has been added requiring the applicant to indicate any shift of assets or incurment of liabilities in the year prior to the initiation of the proceeding that reduced the applicant's net worth below'the statutory ceiling.
Revelation of a transaction designed
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solely to comply with the EAJA's net worth requirement would merit consideration as a "special circumstance" under 5 U.S.C. 504(a)(1) that would make an award unjust.
In addit, ion, after careful consideration,.
the Comission has decided that it will drop proposed 52.1011(b),
providing for confidential treatment of net worth exhibits, and require-that all net worth statements be made part of the public record, as in C
D0J 9 24.202(c).
In his April 27, 1981 comments on the ACUS proposed model rules, the NRC General Counsel expressed his view that the exemptions to disclosure found in the Freedom of Information Act, 5 U.S.C. 552, likely did not ;,covide a basis for withholding.a net worth statement.
The Justice Department has taken a similar position and i
notes that the EAJA contains no requirement for a confidentiality ~
provision and that the courts have not adopted this type of procedure for judicial proceedings (47 FR at 15774-75).
Upon reconsideration, the Comission has determined that the best course is simply to provide for public disclosure.
Also revised is 5 2.1012 concerning documentation of fees and l-expenses.
As provided for in D0J 9 24.203, documentation must now be submitted in the form of an affidavit, instead of a statement, which was l
required under the proposed rule.
The section has also been changed to i
require that a fee application include an hourly billing rate figure for the majority of t% clients served by the attorney, agent, or expert witness or, D ru hourly rate is paid, information from two individuals with similar experience stating the hourly rate at which they bill the majority of 'their clients.
These additions are designed to aid the t
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presiding officer in establishing the prevailing market rates for fees under 5 U.S.C. 504(b)(1)(A).
An additional change is the modification of 5 2.1027 concerning agency review.
In D0J's discussion of its 5 24.307,, it noted that substantial questions exist as to the scope of agency review of the initial findings of a presiding officer concerning an EAJA application.
Although indicating that certain aspects of the decision, such as the amount of an award, may be reviewable, D0J took issue with the ACUS interpretation of the EAJA that would allow for full agency review of an award (47 FR at 15776).
The NRC's rules do not seek to settle this dispute; however, language is being added to indicate that agency review is to be "to the extent permitted by law."
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.e As a result of consideration of D0J 55 24.308 and 24.309, a new i 2.1028, also has been added to NRC's' rule to indicate the availability of judicial review.
The proposed 5 2.1028 has been redesignated as 5 2.1029 and revised to indicate that fee awards resulting from either a final agency decision or a final judicial decision on a fee application can be directed to the NRC Office of Resources Management.
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In addition to these changes, several other revisions in the proposed rule are considered necessary.
First, in 5 2.1000 as proposed, the term " modify"' was used to describe license changes.
Under NRC regulations, however, modification of a license generally refers to instances when the agency' initiates the license revision.
To avoid any ambiguity, we have added the term " amendment" to 5 2.1000 to indicate that all proceedings involving license revisions, without e
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l regard to whether the revisions were initiated by the agency or the licensee, are included under the EAJA, so long as they meet the other requirements of an " adversary adjudic,ation.", Also, in order to conform the language of this rule more closely to existing NRC regulations, the term'" representative" has been substituted for the term " agent" in the
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proposed rule.
This is prompted by the use of the former term in 10 CFR 2.713(b) to indicate those who, though not attorneys, nonetheless.
champion the interests of a party to a proceeding.
Finally, it has been determined that the proposed addition of language to Part 1 concerning the Atomic Safety and Licensing Appeal Board's function in. ruling on EAJA applications is unnecessary in light of.similar language being added to 10 CFR 2.785 and the general delegation section of the EAJA rule,10 CFR 2.1006.
The proposed change has thus been dropped.
I,naccordancewith5U.S.C.553(d)(3),theCommission'sproposed i
rule is to be immediately effective when published in final form.
Good cause exists for such action in that the' rules are procedural and will l
not affect adversely any member of the public.
REGULATORY FLEXIBILITY CERTIFICATION In accordance with the Regulatory Fl.exibility Act of 1980, 5 U.S.C.
605(b), the Comission hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities.
A recent ACUS estimate based on the Uniform Caseload Accounting system indicates that the number of small entities involved will amount to perhaps six per year.
Moreover, the rule merely establishes a l
l procedural framework for the submission and determination of
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applications for fees and expenses incurred in participating in NRC adversary adjudications and does not itself impose significant economic benefits or burdens.
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PAPERWORK REDUCTION ACT STATEMENT As required by the Paperwork Reduction Act of 1980, Pub.L. No.96-511, 44 U.S.C. 3501-3520, this final rule has been submitted to the Office of Management and Budget (OMB) for clearance of its reporting /recordkeeping/ application requirements.
The SF-83, " Request for Clearance," a supporting statement, and other related documentation submittedto0MBhavebeenplacedinthekRCPublicDocumentRoomat 1717 H Street, N.W., Washington, DC 20555 for inspection and cop'ying for
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a fee.
LIST OF SUBJECTS IN 10 CFR PART 2 Part 2 - Administrative practice and proce, dure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sex di'scrimination, Source material, Special nuclear material, Waste treatment and disposal.
Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and section 553 of title 5 of the United States Code, the following amendments to Title 10, Chapter 1, Part 2, Code of Federal Regulations is published as a document subject to codification.
[ Note to OMB Reviewing Of ficial:
Strikeovers indicato portions
' of p'roposed rule that will be de.leted; underlined portions are
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1.
Th e-a ut h o ri.ty-cita ti on-fo r-Pa rt-1-i s-revis ed-to-re a d-a s-f0 MOWS +
AUTHOR +TY-:--Sec.161, Pub. L.83-703 ;-68-Stat. 048-(42-U-S:C. 2201-h-secs,-201,-203,-204,-205,-and-209 -Pub. L.93-438 Stat.1242,1244, 7
7 1-2457F245, and-1248-(42-U.S.5. 5841, 5843, 5844 rand-5849h-Pub-i.
94-70, 89-Stat---41-3;-and-5-U S C. 504, 552-and-55&.
2.
Sect-ior.1.12 of-Part 1 is -rev-ised-to-read-as-foMows:-
5 1.12 At omi c-S a-fety-a nd-bic e n s-i n g-A p pe al-P a n eh Th e-A tomic-S a fe ty-a n d-L-i ce n si n g-Ap p e al-P a n el-i s-t h e-o rg a n iz a ti on al g ro u p-f rom-whi ch-Atomi c-Sa fe ty-a n d-L-i c e n s i n g-Ap peal-B oa rd s-a re-s el ected.
Unde r-powe rs-d el e g a te d-by-th e-C omi s si o n,-th e s e-thre e-membe r-Bo a hd s exerc4s e-t h e-a u th o r4ty-a n d-p e rfo rm-t h e-reg u l a to ry-rev i ew-fu ncti o n s-whic h-would-otherwise-be-exerc4 sed-and-performed-by-the-Comissionr-They perform-these-functions-in-proceedings-on-1-icenses-urjder-10-CFR Part-50, and-s u ch-ot he r-14 c e ns4n g-p roc ee din g s-a s-t h e-C ommi s si on-may-s p e c i fy,
rev4 ewing-ini-t4al-deci-s4cas-and-other--issuances-of Atoinic Safety and L4cens4ng-Bo a rd s-a nd-ot h e r-p re sidin g-off4ce rs. They-shal4-also-perfonn-
-these-?unct-l o ns-in-proc e eding s-u nde r-t he-Eq u a4-Acce s s-t o-J u s-ti ce-Act, The Panel : ham-be-comprised-of-a-Chief-Administrative-Judge-who-shall-i be-G h a-irma n-a n d-s u c h-o t h e r-Admi n i s t r a ti v e-J ud g es-as-may-be-a p poi n te d i
members-of-the-Panel.
W 9
e S
e 9
14
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l 3.
1.
T h e-a u t h o ri ty-c i t a t i o n-fo r4 a rt-2-i-s-rewis ed-to-re a d-a s-414own
~
AUTNGRRY-:-Secs.161p-and-1&l;-Pub.L. S'3-703, 58-Statv-950-and 0S3 (42-U.S.C. 2201(p}-end-2231); sef.. 101, as-amendedr-Pub:b-87-6Hb-76--Statr
'400 (42-U:S.C.--E24-1-)1-sec. 20Sas-amendeddub-L---93-438d8-Statr-1-242-(42 U.S.C. 5841); 5 U.S.C. 522; 5 U.S.C. 5041-unicss-otherwise-noted.
Seetions 2.200 - 2.206-also--i-ssued-under-sec,-186s-PubrL,-83-703,-68 S-tat.--955-(42 LS.C. 2236-)-and-sec -2MW93-438 Mat,-4246 (43U.S.C.5846).
Sec44ons 2.800 2.808-a45o-4s sved-under-5-WSrG:
553-
_PART 2--RULES OF PRACTICE FOR
~
DOMESTIC LICENSING PROCEEDINGS
~
~~
1.
The authority citation for Part 2.is revised to read as follows:
Authority:
Secs. 161, 181, 88 Stat. 948, 953 (42 U.S.C. 2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.
22'41); sec. 201; Pub. L.93-438, 88 Stat.1242, as amended by Pub.
L. 94-79, 89 Stat. 413 (42 U.S.C. 5841); 5 U.S.C. 552; Pub. L.96-481, 94 Stat. 2325 (5 U.S.C. 504).
(Section 2.101 also issued under secs. 53, 62,' 81, 103, 104, 105, 68 Stat. 930, 932, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2093, 2111, 2133, 2134, 2135); sec. 102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).
Sections 2.102, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183,
15
[7590-01]
189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134,2135,2233,2239).
Sections 2.200-2.206 also issued under sec. 186, 68 Stat. *955 (42 U.S.C. 2236); sec. 206, 88 Stat.1246 (42 U.S.C.
5846).
Sections 2.600-2.606, 2.730, 2.772 also issued under sec.102,
~
Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332).
Sections 2.700a, 2.719 also issued under 5 U.S.C. 554.
Sections 2.754, 2.760, 2.770 also issued under 5 U.S.C. 557.
Section 2.790 also issued under sec.103, 68 Stat. 936, as amended (42 U.S.C. 2133).
Sections 2.800-2.807 also issued under 5 U.S.C. 553.
Section 2.808 also issued under 5 U.S.C. 553 and sec. 102, 83 Stat. 853 (42 U.S.C. 4332).
Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended by Pub. L.95-209, 91 Stat. 1483 (42 U.S.C. 2039).
Appendix A is'~also issued under sec. 6, Pub. L.91-580, 84 Stat.1472 (42 U.S.C. 2135))
-4r-2.
Section 2.1 of-Part 2-is revised to read as follows:
f 2.1 Scope.
This part governs the conduct of all proceedings, other than export l
and import licensing proceedings described in Part 110, under the Atonde Energy Act of 1954, as amended, and the Energy Reorganization Act of o
1974, for: (a) Granting, suspending, revoking, amending, or. taking other action with respect to any license, construction permit, or application to transfer a license; (b) imposing civil penalties under section 234 ~of l
the Act; and (c) public rulemaking.
This part also governs proceedings under the Equal Access to Justice Act.
e
16
[7590-01]
HEr 3.
In Part 2, 5 2.721, paragraph (a) is revised to read as follows:
5 2.721 Atomic safety and licensing boards.
(a)
The Commission or the Chairman of'the Atomic Safety and Licensing Board Panel may from time to time establish one or more atomic safety and licensing boards, each comprised of three members, one of whom will be qualified in the conduct of administrative proceedings and two of whom shall have such technical or other qualifications as the Comnission or the Chairman of the Atomic Safety and Licensing Board Panel deems appropriate to the issues to.besdecided, to preside in such proceedings for granting, suspending, revoking, or amending lic.enses or authorizations as the Commission nay designate, to preside in
}
- 3. -
proceedings under the Equal Access to Justice Act as set forth in Subpart J of this Part, and to perform such _other adjudicatory functions as the Commission deems appropriate.
The members of an atomic safety and licensing board shall be designated from the Atomic Safety and Licensing Board Panel established by the Commission.
-67 4.
In i 2.785, paragraph (a) is revised to read as follows:
5 2.785 Functions of Atomic Safety and Licensing Appeal Board.
(a) The Commission has authorized Atomic Safety and Licensing Appeal Board to exercise the authority and perform the review functions i
which would otherwise have been exercised and performed by the Commission, including, but not limited to,'those under il 2.760-2.771, 2.912,'and 2.913 in: (1) Proceedings on applications for licenses under
i 17
[7590-01]
Part 50 of this chapter, (2) such other licensing proceedings under the regulations in 'this chapter as, the Commission may specify, and (3) proceedings under the Equal Access to Justice Act.
7.
5.
Part 2 is amended-by-add-ing-a-new Subpart J te eed-g added and reads as follows:
Subpart J --
Implementation of the Equal Access to Justice Act in Agency Proceedings GENERAL PROVISIONS 2.1000 Scope.
y,..
2.1001 Eligibility of applicants..
2.1002 Standards for awards.
2.1003 Allowable fees and expenses.
2.1004 Rulemaking on maximum rates for Lttorney or agent fees.
f 2.1005 Awards against other agencies.
2.1006 Delegations of authority.
INFORMATION REQUIRED FROM APPLICANTS 5
2.1010 Cor. tents of application.
2.1011 Net worth exhibit.
2.1012 Documentation of fees and expenses.
2.1013 When an applica' tion may be filed.
PROCEDURES FOR CONSIDERING APPLICATIONS 2.1020 Filing and service of documents.
e i
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2.1022 Reply.
2.1023 Comments by other parties.
2.1024 Settlement.
2.1025 Further proceedings.
2.1026 Decision.
2.1027 Agency review.
2.1028 Judicial review.
2.1029 Payment of award.
GENERAL PROVISIONS 5 2.1000 Scope.
(a) The Equal Access to Justice Act (referred to as "the Act" in this subpart) provides for the award of agent-or-attorney representational fees and other expenses to eligible individuals and
~
en'tities who are prevailing parties to adversary adjudications conducted by the NRC.
Such adjudications are thos'e held under 5 U.S.C. 554 in which the position of this or any other agency of the United States, or 9
any component of an agency, is represented by an attorney or other representative who enters an appearance and participates in the proceeding.
Proceedings to grant or renew licenses are excluded by the Act, but proceedings to amend, modify, suspend, or revoke a license are covered if they'are otherwise adversary adjudications within the meaning of the Act.
If a proceeding includes matters covered by the Act and
~
matters specifically excluded from coverage, any award made will include only fees and expenses related to covered issues.
e k
19
[7590-01]
(b) The Act applies to any adversary adjudication pending before this agency at any time between October 1,1981, and September 30, 1984.
This includes
- proceedings begun before October 1,1981, if final agency G
action has not been taken before that date,' and proceedings pending on l
September 30, 1984.
l l
5 2.1001 Eligibility of applicants.
(a) To be eligible for an award of attorney fees and other expenses under the Act, 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 section and in 55 2.1010.1013.
(b) Applicants eligible for awards under the Act are limited to --
l (1) An individual with a net worth of_not more than $1 million; (2) The sole owner of an un, incorporated business who has a net worth of not more than $5 million, incl'uding 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 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 empioyees; and
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9 9
9
20
[7590-01]
l (5)
Any other partnership, corporation, association, or public or private organization with a net worth of not more than $5 million and not more than 500 employees.
[
J (c)
For the purpose of eligibility, the net worth and number of employees of an applicant d a4 will be determined as of the date the proceeding was initiated.
(d) An applicant who owns an unincorporated business will be considered as an " individual" rather than a " sole owner of an unincorporated business" if the issues on which' the applicant prevails are related primarily to personal interests'.rather than to business interests.
1.
(e) The employees of an applicant include all persons who -
7.~
regularly perform services for remuneration for the applicant, under the applicant's direction and control.
Part-time employees s$a M will be included on a proportional basis (e.g. -- two part-time employees each working one-half the time required of an average full-time employee should be counted as one full-time employee).
~
(f) The net worth and number of employees of.the applicant and all of its affiliates must be aggregated to determine eligibility.
Any individual, corporation, or other entity eat who_ directly or indirectly controls or owns a majority of the voting shares or other interest of the applicant, or any corporation or other entity of which the applicant directly or indirectly owns or controls a. majority of the voting shares
~
or other interest, will be considered an affiliate for purposes of this subpart, unless the presiding officer determines that such treatment
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i 21
[7590-01]
.would be unjust and contrary to the purposes of the Act in light of the actual relationship between the affiliated entities.
In addition, the presiding 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 who 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.
5 2.1002 Standards for awards.
(a) A prevailing applicant may rece'ive an award for fees and expenses incurred in connection with a proceeding, or in a final,
,h
significant, and discrete substantive portion of the proceeding, unless the position of the agency over which the applicant has prevailed was substantially justified or special circumsta~nces make the award sought unjust.
The burden of proof that an award should not be made to an eligible prevailing applicant is on the agency staff, which may avoid an award by showing that its position was reasonable in law and fact.
No '
presumption arises that the agency staff's position was not substantially justified simply because the agency did not prevail.
(b) An award will be reduced or denied if the applicant has unduly-or unreasonably protracted the proceeding or-Especiabcir-cumstances make-the-award-sought-unjust.
5 2.1003 Allowable fees and expenses.
(a)
Awards will be based on rates customarily charged by persons engaged in the business of acting as attorneys, agents-representatives,
t e
i 22
[7590-01]
and expert witnesses,.even if the services were made available without charge or at a reduced rate to the applicant.
(b)
No a' ard for the fee of an attorney or agent representative w
under these rules may exceed $75 per hour.
No award to compensate an j
expert witness may exceed the Mghest-r-ate-at which the ND.C pays.-exper-t witnesses maximum hourly rate payable to a GG-18 employee of the NRC.
An award may include the reasonable expenses of the attorney, agent representative, or expert witness as a separate ites, if the attorney, agent representative, or expert witness ordinarily charges clients separately for these expenses.
(c)
In determining the reasonableness of the fee sought for an attorney, agent representative, or expert witness, the presiding officer shall consider the following:
(1)
If the attorney, agent representative, or expert witness is in private practice, his or her customary fee for similar services, or, if an employee of the applicant, the fully allocated cost of the services; (2)
The prevailing rate for similar services in the conrnunity in which the attorney, agent representative, or expert witness ordinarily performs services; i
(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 as may bear on the value of the services provided.
23
[7590-01]
(d)
The reasonable cost of any study, analysis, engineering report, test, project, or similar matter prepared on behalf of a party may be awarded, to the extent that the charge for the service does not exceed the prevailing rate for similar services, and the study or other matter was necessary for preparation of the applicant's case.
I 2.1004 Rulemaking on maximum rates for attorney or agent representative 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 procbedings), the NRC may adopt regulationsprovidingthatattorneyoragenirepresentativefeesmaybe awarded at a rate higher than S75 per hour in some or all of the types
~
t of proceedings covered by this subpart.
Any person may file with this
~
agency a petition for rulemaking to. increase the maximum rate foF attorney or egent representative fees, in accordarice with 10 CFR 2.802.
The petition should identify the rate the petitioner believes this agency should establish and the types of proceedings in which the rate should be used.
R The petition should also explain fully the reasons why the higher rate is warranted.
1 2.1005 Awards against 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 NRC and takes a position that is not substantially justified, O
e n
24
[7590-01]
the award or an appropriate portion of the award must be made against that agency.
5 2.1006 Dele'gations of authority.
y The Comission delegates to the presiding officer and the Atomic Safety and Licensing Appeal Board authority to take final action on matters pertaining to the Equal Access to Justice Ac't, 5 U.S.C. 504, in adversary adjudications before these officials.
The Comission may by order delegate authority to.take final action on matters pertaining to the Equal Access to Justicd Act in particular cases to other subordinate officials or bodies.
t INFORMATIONREQUIREDFROMAPPLhCANTS
... ~
6 2.1010 Contents of application.
(a) An application for an award of fees and expenses under the Act must identify the applicant and the proceeding for which an awa'rd is sought.
The application must show that'the applicant has prevailed and identify the position of an agency or agencies in the proceeding that the applicant alleges was not substantially justified.
Unless the applicant is an individual, the application must also state the ""aber of-employees -ef the-applicant that the appEcant di_d not have_mo_re_than 500 employees at the time the proceeding was initiated and d'escribe briefly the type and purpose of its organization or business.
(b) The application must also include a statement that the applicant's net worth as of the time the proceeding was initiated did not exceed $1 million (if an individual) or $5 million (for all other e
--n v.
25
[7590-01]
applicants, including, their affiliates).
However, an applicant may omit this statement if --
(1)
It attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) and is exempt under i
section 501(a) or, in the case of a tax-exempt organization not required to obtain a ruling from the Internal Revenue Service on its exempt status, a statement that describes the basis for the applicant's belief that it qualifies under such-section 501(c)(3) of the Code; or (2)
It states that it is a cooperative association as' defined in l
section 15(a) of the Agricultural Marketing Act (12 U.S.C.1141j(a)).
(c) The application must state.the amount of fees and expenses for y
which an award is sought.
(d)
The application may also include any other matters that, the applicant wishes the NRC to consider in determining whether and in what amount an award should be made.
l (e)
The-a ppMc art-i on-mu st-b e-s-i g ned-by-the-a ppm ca nt-o r-a n l
author 4aed-off4cer-or-attorney-of-the-appMcant The applicant or an authorized officer of the applicant must sian the application with i
respect to the eligibility of the applicant and by the attorney or representative of the applicant with respect to the fees and expenses sought.
Et The application must a4so-contain or be accompanied by a h
written verification under oath or affirmation or under penalty of l
perjury that the information provided in the application and all G
.-.n.-
t 26
[7590-01]
accompanying material is true and complete to the best of the signer's information and belief.
5 2.1011 Net worth exhibit.
(a)
Each applicant, except a qualified tax-exempt-organization or cooperative association, shall provide with its application a detailed exhibit showing the net worth of the applicant and any affiliates (as definedini2.1001(f)of.thissubpart)whentheproceedingwas 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 t'o determine whether the applicant qualifies under the standards in this subpart.
The presiding
~~
,. ~
officer may require an applicant to file additional information to.
determine its eligibility for an award.
~
(b) The net worth exhibit shall describ~e any transfer of assets from, or obligations incurred by, the applicant or any affiliate, occurring in the one-year period prior to the date on which the proceeding was initiated, that reduced the net worth of the applicant, and its affiliates below the applicable net worth ceiling.
If there were no such transactions, the applicant shall state there were none.
(-b-)-O rd i na r41y,-t h e-n e t-wo r-t h-e x hi b4t-4s--i n clu d e d--i n-th e-pub-1-ic reco rd-o f-t h e-p r,o c e e d i n g.-Howe v e r,-a n-a p pl-i c a nt-th a t-obj e c ts-to-pu bl i c.
di s cl os u re-of-i nfo nna ti on--i n-a ny-po rti o n - o f-th e-exh i bi t - a n d - bel i eves-the re-a re-l e gal-g ro u n d s-fo r--wi th h ol di n g-i t-f rom-d i s cl o s u re-may-su bmi-t that-por-tion-of--the-exhibit directly-to-the-presiding-off-icer-in-a sea-led-envelope-labeled " Confidential-Financial-Information "-
r
27
[7590-01]
accompanied by-a-mot 4on-to-withhold-the-informationJrom-public disc 40sure.
Th e-mot 4on-mu s t-d es or4 be-t h e-info rma t4 o n-s ou g ht-to-be.
wit h h ei d-a n d-e x pl a i n,-i n-de ta44,-why-4t-falls-within-on e-o r-more-of-th e.
specif-ic-exemptions from-mandator-y-disclosure-under-the creedom-of Informatier Act, 5-U.S.C 552(b)(1)-(9), why-public--disclosure-of the infom.atier would adveesely-e Aect the applicantand-why disclosure is not-required ?n-the-public interest.
The-net-wor-th-mater 4a! 4a question mus4 be-served-on -counsel representing the agency aga. inst which the -
a ppli c a n t-s e e k s-a n-a wa rdrb u t-n e e d-n o t-b e-s e rv e d-o n-a ny-ot h e r-pa r-ty-t o the-proceed 4ng.- The-motion-to-withhold-the-infomat-ion-sha4L-be-served on-all-pacties._to the-proceediny,-who-shall have ten _(40-) days-within
[.-
wh4ch-to f-iae-any-reply-support 4ag-or-contest 4ag 'he-request-for~
nond?sclosure.
!# th e-pre s4d4n g-of f4 eer-44n d s-t h a t-the-informat4 on-l*
should-not-be. withhead from disclosure, it-must be-placed in *he-pubLic i
record-of-the proceed 4ngru nles s-the-a p pMca nt-h a s-indica te d-i n-its-motion-that,-i n-t he-event-of-e-refu saNt o-wit h hold-from-d&selo s u rer4t-would-prefer---thatall net vicrth catenial-be-returned to it-and that 4ts abrd-application be "ithdrawn,--Otherwise,-any-request-to inspect-oc copy the-exhibit ui be-44sposed of in-accordance-with-the-NRCis-l l
established-procedures-under-the-F-reedom-of 4nfomation Ac' min rep l
-973,461-1 (c)
The net worth exhibit shall be included in the public record l
of the proceeding.
28
[7590-01]
5 2.1012 Documentation of fees and expenses.
The-app 14 cation-must-be-accompanied by full documentation-of the.
fees-and-expenses -4nc4uding-the-cost-of-any-study,-analysis, r
engineering-report,--test, project,-or similar-matter,-for which an award.
1:
ought.
- f. separate-4temized-statement-must-be-submi-tted--for each.
profess 4onal #ir or-4ndiv44ual-whose-serv 4ces-are-covered-by-the-app 14 cat 4en-s h owin g-t h e-ho u rs-s pe nt-in-co nn ec t4cn-with-t he-p roceedi ng-by each-4ndiv4duat,-a descr-iption-of-the--specif-ic-services-performed,-the-r-ate-at which eachJee bas-been-computed,-any-expenses for which ra % ursem nt is sough +
+he +n+al aEcun+ 'clNimed, and-the total amount
-paid-cr-payable by the-applicant-or-by-any-olher-perwn er entity fon
- [
the cervices-prov4dedr--The-pres 4 ding-of-f4cer-may-require-the-app 14 cant to-prov44e-vouchers s-FeCedpts y-or--other--Subs tantiati-onJor-any-expenses claimed.
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(a) The application must be accompanied by full documentatioh 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.
(b) A separate itemized affidavit, signed under oath, affimation, or penalty of perjury, must be submitted for each attorney, representative, or expert witness whose services are covered by the application.
Each affidavit must show --
(1) The number of hours spent in connection with the proceeding by the individual; (2) d description of the specific services perfonned;
5 29
[7590-01]
(3)
The rate at which each fee has been computed; i
(4)
The hourly rate that.is billed and paid by the majority of clients during the relevant time period; (5) Any expenses for which reimbursement is sought; (6)
The total amount claimed; and (7) The total amount paid or payable by the applicant or by any other person or entity for the services provided.
(c)
If no hourly rate is paid by the majority of clients (e.g., an attorney represents most clients on a contingency basis), the attorney, representative, or expert witness shall provide information about two attorneys, representatives or expert witnesses with similar experience who perform similar work, stating the hourly rate that they bill and are paid by the majority of their clients during a comparable time ' period.
(d)
The presiding officer may require-the applicant to prov.ide
~
vouchers, receipts, or other substantiation for any expenses cl' aimed.
i 2.1013 When an application may be filed.
(a)
An application may be filed whenever the applicant has prevailed in th'e proceeding or in a final, significant, and discrete substantive portion of the proceeding, but in no case later than thirty (30) days after a final administrative disposition of the proceeding.
(b)
If agency review or reconsideration is sought o.- taken of a decision as to which an applicant believes it has prevailed, proceedings for the award of fees will be stayed pending final administrative _
disposition.of the underlying controversy.
If judicial review is sought or taken of a final administrative disposition of the underlying e
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30
[7590-01]
controversy as to which an applicant believes it has prevailed, proceedings for the award of fees will be stayed and determined in accordance with 28 U.S.C. 2412(d)(3) and 5 U.S.C. 504(c)(1).
- However, proceedings for the award of fees need not be stayed as to any significant and discrete substantive portion of the underlying controversy if no party to the proceeding seeks judicial review of that portion of the underlying controversy,.
i (c)
For purposes of this subpart, final administrative disposition means the later of --
(1) The date on which an initial decision or other disposition of the merits of the proceeding by the presiding officer, the Atomic Safety and Licens_ing Appeal Board, or the Commissica becomes administratively final; (2)
Issuance of an order disposing of any petitions for reconsideration of a final order in the proceeding 1 (3) The last date on which such a petition could have been filed.
.if no petition for reconsideration is filed; or
~
(4)
Issuance of a final order or any other final resolution of a proceeding, such as a settlement or voluntary dismissal, which is not subject to a petition for reconsideration.
i k)
Fo r-pu rp os e s-of-th i s-s u b pa rt,-41 na l-admi ni st ra ti ve-d i s po s i ti o n means-the-later f-61-)-the-date-on-which--an initial. decision-or-other.
disposition-of-the-mer4ts-of-the-proceeding by-the-presiding off4cery the-Atomic-Sa fe ty-a n d-L-i c e n sin g-Ap p e a l-B o a rd,-o r-the-C omi s s i o n-b e c ome s-admin 4stratively f4nal-;-(2-)_ issuance-of-an-order disposing-of-any-
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i Pe t4 t4 o n s-fo r-re c o n si d e ra ti o n-o f-a-f-i n a l-o rde r-i n-th e-p ro c e ed i'.g ;-f3-)-i f-no-pet 4t i o n-fo r-re con s4 de ra t4 o n-i s-f41 e d r-the-l a s t-d a te-o n-wh i ch-s u ch-a-pet 4t4 on-co u l d-h a v e-b e e n-f41 e d ;-o r-(4 )-i s s u a n ce -of-a-f4 n al-o rd e r-o r-a ny.
ot h e r-f4 n a l-re s ol u ti o n-of-a-p rc :e e d i n g r-s u c h-a s-a-se ttl eme n t-o r vol u n ta ry-d i smi-s s a l,-wh i ch-1 s - n o t..s ubj e ot-t o-a-pe14ti on-fo n--
recons-ideration.
PROCEDURES FOR CONSIDERING APPLICATIONS 5 2.1020 Filing and service of documents.
Any application for an award or othei pleading or document related to an application must be filed and served,on all parties to the proceeding in accordance ~with the Comission's ru'Jes,10 CFR 2.701 and
' 2.712 except-es-prov4ded-in-6-2,01-1S)-for-conf-idential-f4nanc4al-4nforma' tion.
9 2.1021 Answer to application.
(a)
Within thirty (30) days after' service of an application, staff counsel may file an answer to the application.
Unless staff 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 thirty-day period may be treated as a consent to ' he t
award requested.
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(b)
If staff 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 extends the time for filing an answer for an additional. thirty (30)
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days, and further extensions may be granted by the presiding officer upon request by staff counsel and the applicant.
(c) The answer must explain in detail.any objections to the award y
requested and identify the facts relied on in support of staff counsel's position.
If the answer is based on any alleged facts not already in the record of the proceeding, staff counsel shall include with the answer either supporting affidavits or a request for further proceedings under i 2.1025.
5 2.1022 Reply.
Within fifteen (15) days after service'of an answer, the applicant
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may file a reply.
If the. reply is based on any alleged facts n6t 3-already in the record of the proceeding, the applicant shall include with the reply either supporting affidavits or a request for further
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proceedings under 5 2.1025.
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$ 2.1023 Comments by other parties.
Any party to a proceeding other than the applicant and staff counsel may file comments on an application within thirty (30) days after it is served or on an answer within fifteen (15) days after it is l
served. A commenting party may not participate further in proceedings on the application unless the presiding officer determines that the public interest requires its participation in order to permit full exploration of matters raised in the comments.
9 2.1024 Settlemen,t.
The applicant and staff counsel may agree on a proposed settlement l
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of the award before final action on the application, either in l
connection with a settlement of the underlying proceeding, or after the underlying proceeding has been concluded.
If a prevailing party and staff counsel agree on a proposed settlement of an award before an
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application has been filed, the application must be filed with the proposed settlement.
Any settlement is subject to approval by the presiding officer.
See 10 CFR 2.203.
5 2.1025 Further proceedings.
(a)
The presiding officer who renders the initial decision in the -
underlying proceeding will preside over any Equal Access to Justice Act proceeding unless the Comission designates some other official' pursuant h ~~
to 5 2.1006.
Ordinarily, the determination of an award will be made on the basis of the written record of the underlying proceeding and the filings required or permitted by this subpart.
Sowever, on request of either the applicant or staff counsel, or sua sponte, the presiding officer may order further proceedings, such as an informal conference, i
oral argument, additional written submissions, or an evidentiary hharing.
Any further proceedings will be held only when necessary for full and fair resolution of the issues arising from the application, and must be conducted as promptly as possible.
(b) A request that the presiding officer order further proceedings under this section must specifically identify the information sought or the disputed issues and must explain why the additional proceedings are necessary to resolve the issues.
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5 2.1026 Decision.
The' presiding officer's initial decision on the application should ordinarily be issued within forty-five (45) days after completion of proceedings on the application.
The decision must include written findings and conclusions on the applicant's eligibility as a " party" under 5 U.S.C. 504(b)(1)(B) 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 must also include, if at issue, findings on whether the agency's position was substantially justified, whether the applicant unduly protracted the, proceedings, or whether special circumstances make an award unjust.
If the applicant 1-has sought an award against more than one agency, the decision must
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allocate responsibility for payment of any award made among the agencies, and must explain the reasons for the allocation that was made.
5 2.1027 Agency review.
Review of the initial decision on the fee application shall be, to the extent permitted by law, requested and conducted in accordance with 55 2.760, 2.762.763, 2.770.772, and 2.785.787.
If neither the l
applicant nor staff counsel seeks review and neither th'e Atomic Safety and Licensing Appeal Board nor the Cocmission takes review on its own initiative, the, initial decision on the application becomes a final decision of the agency thirty (30) days after it is issued.
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5 2.1028 Judicial review.
Judicial review of a final agency decision on a fee application may be sought as provided in 5 U.S.C. 504(c)(2).f
-f-2r102B i 2.1029 Payment of award.
(a) An applicant seeking payment of.an' award from the NRC shall submit a copy of the agency's final decision granting the award, accompanied by a statement that the applicant will not seek review of the decision in the United States courts, or that the process of judicial review of the award has been completed, to Director, Division of Accounting and Finance, Office of the-Control.ler Resource Management.
U.S. Nuclear Regulatory Conmission, Washington, DC, 20555.
The agency 4 -.
will pay the amount awarded to the applicant within sixty (60) daysj unless-judicial-rev4ew-of-the-aEard-or-of--the-underlying decisi-on-of-the--
adve rs a ry-ad5' u di ca ti o n'-ha s-be e n -s ou g ht-by-the-a p pl i ca nt--o r-a ny-othe r a
par-ty-to-the-proceeding.
(b)
Intervenor parties. seeking _ payment from the NRC should be l
asare of section 502 of the Energy and Water Development Apprcpriation Act, 1982, Pub. L. No. 97-88, 95 Stat.1135, which provides that "[n]one of the funds in this Act [ appropriating funds to the NRC for fiscal l
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1982] shall be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings "
Dated at Washington, DC, this day of 1982.
For the Nuclear Regulatory, Comission SAMUEL J. CHILK Secretary of the Comission
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DRAFT NO. 8 Bollwerk:sms 6/8/82 Diskette: MISC Document:F.R. Notice 6_
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