ML20149E112
| ML20149E112 | |
| Person / Time | |
|---|---|
| Issue date: | 04/29/1994 |
| From: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| Shared Package | |
| ML20149E105 | List: |
| References | |
| FRN-58FR41061, RULE-PR-12 CCS, NUDOCS 9405260230 | |
| Download: ML20149E112 (26) | |
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NUCLEAR REGULATORY COMMISSION 10 CFR PART 12 RIN 3150 AE61 Equal Access to Justice Act: Implementation AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
SUMMARY
- The Nuclear Regulatory Commission (NRC) is amending.its regulations by ' adding new provisions designed to implement the Equal Access to Justice Act (EAJA). The EAJA provides for the award of fees and expenses to.certain individuals and businesses that prevail in agency formal adjudicatory proceedings in which the agency's position is determined not to have been substantially justified. ,
EFFECTIVE DATE: [30 days after date of publication in the Federal Register) .
FOR FURTHER INFORMATION CONTRACT:
Susan Fonner, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 504-1634.
SUPPLEMENTARY INFORMATION:
1. Background
II. Responses to Comments Received.
III. Administrative Statements.
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9405260230 940429 58 41061 PDR
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3 I. Background The Equal Access to Justice Act (EAJA) became law on October 21, 1981 (5 U.S.C. 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. Generally, for an award to be made, the proceeding must be one that is " required by statute to be determined on the record " See, Ardestani v. U.S. Department of Justice, U.S. , 112 S.Ct. 515 (1991).
On October 28,1981 (46 FR 53189), the NRC published a proposed rule designed to implement the EAJA in the Federal Register. However, serious doubt developed as to the need for the regulations. A significant consideration in this regard was the impact of a statutory bar against the use.
of funds appropriated to the NRC "to 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. In addition, case law developed in the 1980's indicating that the Commission would receive judicial support if it determined that no NRC license proceeding of any kind is covered by the EAJA.
With the enactment of the Inspector General Act Amendments of 1988 (Pub. L.100-504,1102 Stat. 2515), which established'an Office of the Inspector General in the NRC, the NRC became subject to the Program Fraud-Civil Remedies Act (PFCRA), 31 U.S.C. ch. 38. Hearings under the Program Fraud Civil Remedies Act are expressly covered by the EAJA,' necessitating the issuance of EAJA regulations by the NRC. However, because of the length of 2
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time that had gone by since the NRC issued the 1981 proposed EAJA rule, the Commission replaced it with a new proposed rule, published on August 2,1993 (58 FR 41061). The new proposed rule was essentially similar to a model rule suggested by the Administrative Conference of the United States (ACUS) for agency adoption. (May 6, 1988, 51 FR 16665.)
II. Responses to Comments Received.
In response to the August 2,1993 proposed rule, the NRC received one set of comments from ACUS and one set from the Nuclear Management and Resources Council (NUMARC). The NRC's consideration of the comments follows.
A. Time deadlines
- 1. Decision on the petition for increase of maximum rate for attorney fees.
Comment. ACUS recommended that the rule provide a specific time frame for agency action on a petition for rulemaking to increase the maximum rate for attorney fees.
Resoonse. The EAJA provides a $75 hourly ceiling on attorney fees, but l allows agencies to raise the statutory ceiling by regulation. The proposed rule provides that any person may file with the Commission a petition for-rulemaking to increase the $75 maximum hourly rate for attorney fees, and refers to 10 CFR 2.802 and 2.803 for the procedures to be followed with respect to such petitions. Neither the proposed rule nor 10 CFR 2.802 nor 10 i
CFR 2.803 provides a specific time frame for agency action on the' petition for ;
i rulemaking. A sentence has been added to 10 CFR 12.107 requiring the -
1 Commission to determine what action it will take on the petition within 90 I days after the petition is filed.
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- 2. Decision on the application for award of attorney fees. ]
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,u Comment. ACUS recommended that the rule provide a specific time frame for the adjudicative officer to issue an initial decision on the application for award of attorney fees.
Response. 10 CFR 12.307 of the proposed rule states requirements for the adjudicative officer's initial decision on the application for award of attorney fees, but does not prescribe a time limit for the adjudicative officer to issue the decision. A sentence has been added to 10 CFR 12.307 requiring the initial decision to be issued within 90 days after completion of proceedings on the application, but permitting the adjudicative officer to extend the time limit after notice to the parties of the reason for the delay.
Authority is provided for the adjudicative officer to extend the time period in order to prevent the interruption of cases presenting pressing health and safety concerns. The NRC expects that extensions will be issued sparingly.
B. Exhaustion of Administrative Remedies Comment. ACUS stated that if the NRC believes that a request for administrative review should be a prerequisite to judicial review, it should recast 10 CFR 12.308 (Agency review) in light of the Supreme Court's decision in Darby v. Cisneros, U.S. , 113 S.Ct. 2539 (June 21, 1993).
Response. Within the last year, the Supreme Court cast new light on the requirements for exhaustion of administrative remedies before appealing an agency decision to the courts. In Darby v. Cisneros, the Court held that an agency cannot insist on exhaustion of intra-agency appeals prior to judicial review unless the agency promulgates rules that require intra-agency appeals and stay the effect of agency decisions during such appeals. The Commission-believes that for purposes of judicial and administrative economy a request ~
for administrative review should be a prerequisite to judicial review, 4
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partimlarly braum the tsc frequently entertains prhings that em,m highly technical matters.
'Ihe cross-reference in 10 CFR 12.308 to the review p.uc.uiures set out in 10 CFR 2.786 should be sufficient to satisfy the u u-diter that the IEC has addressed the Darby case ruling in these regulations, *nm 10 CFR 2.786(b)(1) expressly provides that the filing of a petition for review is mandatory for a party to exhaust its naministrative rmodies. Nevertheless, it may be ansidered fairer notice to state the requirement in 10 CFR 12.308 itself. Therefore, the IEC has amended 10 CER 12.308 to state unambiguously that an aggrieved party is required to seek himion review of the adjudicative officer's initial decision.
'Ihe application of the part of the Court's opinion on staying the effect of the initial decision seems inapposite in the aantext of an IATA administrative prevw aing, because it makes little sense to speak of a stay of an initial decision denying the application for award of attorney fees, which is the type of decision most likely to he appealed. A sn-ful applicant for an award is not likely to appeal unless he or she is dimatisfied with the amount of the award. 'Ihis poses a very different type of situation 'frem that in the Darbv case, where the court had before it an agency decision debarrirq -
petitioners frcm participating in Federal s.up.am. Nevertheless, in what is perhaps an exmm of caution, we have included in IEC's ENTA rule a statent on stayiry the effect of the initial decision during an appeal to the ernmi mion.
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C. Proceedinas'subiect to the EAJA Comment, NUMARC commented that the rule should be revised to make clear that the only proceedings subject to NRC's EAJA rule are those conducted pursuant to the Program Fraud Civil Remedies Act.
R91panse. The EAJA applies only to an agency adversary adjudication.
50 U.S.C. 504(a). The term " adversary adjudication" is defined by 5 U.S.C.
504(b)(1)(C) to mean an appeal of a decision made pursuant to section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) before an agency board of contract appeals, a hearing conducted under 31 U.S.C. ch. 38 (PFCRA), and an adjudication under 5 U.S.C. 554 (the Administrative Procedure Act). .Section 554 of the Administrative Procedure Act expressly states that (with certain exceptions) it applies "in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing."
A proceeding for the purpose of granting or renewing a license is expressly excluded from EAJA coverage by 5 U.S.C. 504(b)(1)(C). However, there is no express exclusion of proceedings suspending, revoking, or amending a license, including that for a nuclear reactor. As indicated in the Supplementary Information for NRC's proposed EAJA rule, the question of such proceedings was at least addressed partially in 1983, when a materials license amendment proceeding was judicially held as not being required by statute to be conducted "on the record." In that case, the court declined to read section 189(a) of the Atomic Energy Act of 1954 (AEA) as requiring an on-the-record hearing, in the absence of clear Congressional intent to trigger the formal on-the-record hearing provisions of the Administrative Procedure Act.
West Chicaao. Ill. v. U.S. Nuclear Reculatory Commission, 701 F.2d 632 (1983).
Since that time, the Commission has gone on record that it interprets section 6
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In light of the above, it is not unreasonable to conclude that no NRC prc:eeding other than an appeal to a board of contract appeals under the Contract Disputes Act or a Program Fraud Civil Remedies Act hearing is covered by the EAJA. Nevertheless, the Commission does not wish to frame its EAJA regulations in :,uch a way as to preclude potential applicants for attorney fee awards from raising the issue of EAJA coverage, if they can make a good faith argument that the proceeding in which they have been involved falls under.the EAJA. In addition, there is always the possibility of new enactments that cculd make the EAJA applicable to proceedings not previously entertained by the agency. Therefore, the Commission has decided not to state that the NRC's EAJA rule applies only to a proceeding under the Program Fraud Civil Remedies Act.
Nevertheless, the Commission has decided to amend 10 CFR 12.101,12.102, and 12.103 to clarify its intent regarding the scope of coverage of the regulations. The amendment does not make express reference to any type of proceedings other than appeals under the Contract Disputes Act and adjudications conducted pursuant to the Program Fraud Civil Remedies Act, but it contains a general provision that will encompass other types of proceedings j that may fall within the parameters of the EAJA. This leaves room for case-by-case determinations on applicants' claims of coverage in areas that have not been addressed previously by statute, case-law, or express Commission.
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Ill. ' Administrative Statements Environmental Impact: Categorical Exclusion The NRC has determined that this regulation is the type of action described in categorical exclusion 10 CFR 51.22(c). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this rule.
Paperwork Reduction Act Statement The information collection requirements contained in this rule are exempt from the Paperwork Reduction Act of 1980 (44 U.S.C. 3518(c)(1)).
Regulatory Analysis The EAJA provides that individuals and businesses that meet certain. net worth and other requirements and prevail over the NRC in an adversary adjudication in which the NRC's position is not substantially justified may be awarded fees and expenses incurred in connection with the' proceedir.g. 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 l necessary for the NRC to adopt procedures to govern the receipt and l
determination of applications for EAJA fees. The procedures adopted mirror in important respects the model rule promulgated by the ACU3. The NRC has fulfilled the statutorily mandated process of consultatior, between the Chairman of the ACUS and the agency with respect to EAJA in.plementing procedures. See 5.U.S.C. 504(c)(1).
The Commission believes that the l procedures adopted are preferable to other procedural requirements'that might l 8
be imposed. The foregoing discussion constitutes the regulatory analysis for this final rule.
Regulatory Flexibility Certification In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission certifies that if promulgated, this rule will not have a significant economic impact on a substantial number of small entities. The rule merely will establish a procedural framework for the submission and determination of applications for fees and expenses incurred in participating in NRC adjudications and will not itself impose significant economic benefits or burdens.
Backfit Analysis The NRC has determined that the backfit rule,10 CFR 50.109, does not apply to this rule, because these amendments do not involve any provisions which would impose backfits as defined in 10 CFR 50.109(a)(1).
List of Subject Terms in 10 CFR Part 12 Adversary adjudications, Award, Equal Access to Justice Act, Final 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. 552 and 553, the NRC is adopting a new 10 CFR Part 12.
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- 1. A new Part 12 is added to 10 CFR Chapter I to read as follows: ,
PART 12 - IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN AGENCY PROCEEDINGS.
Subpart A . General Provisions i
Sec.
12.101 Purpose.
12.102 When the EAJA applies.
12.103 Proceedings covered. i 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. ,
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12.304 Comments by other parties.
12.305 Settlement.
12.306 Further proceedings.
12.307 Decision.
12.308 Agency review.
12.309 Judicial review 12.310 Payment of award.
Authority: Sec. 203(a)(1), Pub. L.96-481, 94 Stat. 2325 (5 U.S.C. 504(c)(1));
Pub. L. 99-80, 99 Stat. 183.
Subpart A - General Provisions 6 12.101 Purpose.
The purpose of this Part is to state the-regulatory requirements for award of attorney fees to eligible individuals and entities in certain administrative proceedsngs before the Nuclear Regulatory Commission, in-implementation of the Equal Access to Justice Act, 5 U.S.C. 504 (EAJA), which provides for the award of attorney fees and other expenses to parties to
" adversary adjudications", as defined in 5 U.S.C. 504(b)(1)(C). In general, an " adversary adjudication" is an adjudication that is required by statute to be determined on the record after opportunity for hearing before an agency of the United States and in which the position of the agency, or any component of the agency, is presented by an attorney or other representative who enters an appearance and participates in the proceeding. However, some agency adjudications are expressly excluded from coverage by 5 U.S.C. 504 (e.g., an adjudication for the purpose of granting or renewing a license) even though 11 r -- - - - - - -
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they fall within this general definition, and certain appeals before an agency board of contract appeals and Program Fraud Civil Remedies Act hearings conducted under 31 U.S.C. ch. 38 are expressly covered.
An eligible party may receive an award in an adversary adjudication when the party prevails over the Commission, unless the Commission's position was substantially 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.
6 12.102 When the EAJA applies.
The EAJA applies to any covered adversary adjudication pending or commenced before the Commission on or after August 5,1985.
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6 12.103 Proceedinas covered.
(a) The EAJA applies to the following proceedings:
(1) Hearings under the Program Fraud Civil Remedies Act (31 U.S.C.
3801-12);
(2) Any appeal of a decision made pursuant to section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) before an agency board of contract appeals as provided in section C of that Act (41 U.S.C. 607); and (3) Adversary adjudications conducted by the Commission pursuant to ~
any other statutory provision that requires a proceeding before the Nuclear Regulatory Commission to be so conducted as to fall within the meaning of
" adversary adjudication" under 5 U.S.C. 504(b)(1)(C).
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(b) The Commission's failure to identify a type of proceeding as an 1
adversary adjudication shall not preclude the filing of an application by a party who believes the proceeding is covered by the EAJA. Whether the proceeding is covered will then be an issue for resolution in proceedings on the application.
(c) If a proceeding includes both matters covered by the EAJA and matters specifically excluded from coverage, any award made will include only fees and expenses related to covered issues.
6 12.104 Elicibility of aoolicants.
(a) To be eligible for an award of attorney fees and other expenses under the EAJA, the applicant must be a party to the adversary adjudication for which it seeks an award. The term " party" is defined in 5 U.S.C. 551(3).
The applicant must show that it meets all conditions of eligibility set out in this subpart and in subpart B.
(b) The types of eligible applicants are as follows:
(1) An individual with a net w.,rth of not more than $2 million; (2) 'ne sole owner of an unincorporated business who has a not worth of not more. than $7 million, including both personal and business interests, and not more than 500 employees; (3) A charitable or other tax-exempt organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) with not more than 500 employees; ,
(4) A cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C.1141j(a)) with not more than 500 employees; and 13
(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 employees of an applicant shall 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.
(e) The employees of an applicant include all persons who regularly perform services for remuneration for the applicant, under-the applicant's-direction and control. Part-time employees shall be included on a proportional basis.
(f) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility. Any individual, corporation, or other entity that directly or indirectly controls or owns a majority of the voting shares or other interests of the applicant, or any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest, will be considered an affiliate for purposes op this part, unless the adjudicative i 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.
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. 1 (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 :
incurred in connection with a proceeding or a significant and discrete substantive portion of the proceeding, unless the position of the Commission -
over which the applicant has prevailed was substantially justified. The -
position of the Commission includes, in addition to the 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 l 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.
6 12 106 Allowable fees and expenses.
(a) Awards will be based on rates customarily charged by persons engaged in the business of acting as attorneys, agents, and expert witnesses, even if -
the services were made available without charge or at reduced rate to the applicant.
(b) No award for the fee of an attorney or agent under these rules may exceed.$75.00 per hour. No award to compensate an expert witness may exceed 15 1
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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:
(1) If the attorney, agent, or witness is in private practice, his or her customary fees for similar services, or, if an employee of the applicant, the fully allocated costs of the services; (2) The prevailing rate for similar services in the community in which the attorney, agent, or witness ordinarily performs services; (3) The time actually spent in the representation of the applicant; (4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and (5) Other factors that bear on the value of the services provided.
(d) The reasonable cost of any study, analysis, engineering report, test, project, or similar matter prepared on behalf of a party may be awarded, 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 1
preparation of applicant's case.
4 12.107 Rulemakina on maximum rates for attorney fees. j 1
(a) If warranted by an increase in the cost of living or by special -ll circumstances (such as limited availability of attorneys qualified to handle certain types of proceedings), the Commission may adopt regulations providing 16
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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 maximuu rate for attorney fees, in accordance with the '
requirements of 10 CFR 2.802. The petition should identify the rate the petitioner believes the Commission should establish and the types of-preceedings in which the rate should be used. It should also explain fully.
the reasons why the higher rate is warranted. Within 90 days after the ,
a petition is filed, the Commission will determine whether it will initiate a rulemaking proceeding, deny the petition, or take :other appropriate action on the petition. The Commission.will act on the petition in accordance with 10 .
CFR 2.803.
6 12.108 Awards aaainst other acencies.
If an applicant is entitled to an award because it prevails over another ,
agency of the United States that participates in a proceeding before the-Commission and takes a position that is not substantially justified,'the award or an appropriate portion of the award shall be made against that agency.
412.109 Decisionmakina 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 ;
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Subpart B - Information Required From Applicants 6 12.201 Contents of 3DDlication. ,
(a) An application for an award of fees and expenses under the EAJA shall identify the applicant and the proceeding for which an award is; sought. t 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 application shall also state the number of employees of the applicant and .
describe briefly the type and purpose of its organization or business.
(b) The application shall also include a statement that' the applicant's net worth does not' exceed $2 million (if an individual) or $7 million (for all' other applicants, including their affiliates). However, an applicant may omit.
this statement if:
(1) The applicant attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organizrtion described in section.501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a tax-exempt organization not required to obtain a ruling from the Internal Revenue Service on its exempt status, a sti.tement that describes the basis for the f applicant's belief that it qualifies under this section; or l (2) The applicant states that it is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C.<ll41)(a)). l
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(c) The application'shall state the amount of fees and expenses for which an award is sought. j 18 i
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(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.
(a) Each applicant, except a qualified tax-exempt organization or cooperative association must provide with its application a detailed exhibit showing the net worth of the applicant and any affiliates (as defined in 512.104(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.
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 disclosure of informatici, in any portion of the exhibit and believes there are.
legal grounds for wit!.nolding it from disclosure, may submit that portion of ,
the exhibit directly to the adjudicative officer in a sealed envelope labeled f
" Confidential Financial Information," accompanied by a motion to withhold the.
information from public disclosure. The motion shall describe the information sought to be withheld and explain, in detail, why it falls within one or more 19
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- of the specific exemptions from randatory disclosure under the Freedom of Information Act, 5 U.S.C. 552(b)(t)-(9), why public disclosure of the -)
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information would adversely affect the applicant, and why disclosure is not -l 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.
Otherwise, any request to inspect or copy the exhibit shall be disposed of in accordance with the Commission's established procedures under the Freedom of Information Act, 10 CFR part 9, subpart A.
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 f
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 5 12.306 of this part.
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I 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 date on which a 4 decision or order disposing of the merits of the proceeding or any other complete resolution of the proceeding, such as a settlement or voluntary dismissal, becomes final and unappealable, both within the NRC and to the courts.
(b) If after the filing of an application for an award, review or reconsideration is sought or taken of a decision as to which an applicant believes it has p'.evailed, proceedings for the award of fees shall be stayed pending final disposition of the underlying controversy. When the United States appeals the underlying merits of an adversary adjudication to a court, no decision on an application for fees and other expenses in connection with l that adversary adjudication shall be made until a final and unreviewable decision is rendered by the court on the appeal or until the underlying merits of the case have been finally determined pursuant to the appeal.
Subpart C - Procedures for Considering Applications 6 12.301 Filina and service of documents.
Any application fcr 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 aoolicatica.
(a) Within 30 days after service of an application, counsel representing the NRC against which an award is sought may file an answer to the application. Unless the NRC counsel requests an extension of time for filing or files a statement of intent to negotiate under paragraph (b) of this section, failure to file an answer within the 30-day period may be treated as a consent to the award requested.
(b) If the NRC counsel and the applicant believe that the issues in the fee application can be settled, they may jointly file a statement of their intent to negotiate a settlement. The filing of this statement shall extend the time for filing an answer for an additional 30 c. and further extensions may be granted by the adjudicative officer upon request by the NRC counsel and the applicant.
(c) The answer shall explain in detail any objections to the award requested and identify the facts relied on in support of the NRC counsel's position. If the answer is based on any alleged facts not already in the record of the proceeding, the NRC counsel shall include with the answer either supporting affidavits or a request for further proceedings under 5 12.306.
4 12.303 Redly.
Within 15 days after seivice of an answer, the applicant may file a reply. If the reply is based on any alleged facts not already in-the record of-the proceeding, the applicant shall include with the reply either supporting affidavits or a request for further proceedings under 5 12.306.
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6 12.304 Coments by other parties.
Any party to a proceeding other than the applicant and the NRC counsel may file comments on an application within 30 days after it is served, or on an answer within 15 days after it is served. A commenting party may not participate further in proceedings on the application unless the adjudicative officer determines that the public interest requires participation in order to permit full exploration of matters raised in the comments.
6 12.305 Settlemerli.
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.
6 12.336 Further Proceedinas.
(a) Ordinarily, the determination of an award will be made on the basis of the written record. However, on request of either the applicant or the NRC counsel, or on the adjudicative officer's own initiptive, the adjudicative officer may order further proceedings, such as an informal conference, oral argument, additional written submissions or, as to issues other than substantial justification (such as the applicant's eligibility or l substantiation of fees and expenses), pertinent discovery or an evidentiary-hearing. Further proceedings shall be held only when necessary for full and j 23 l 1
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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 was substantially justified shall be determined on the basis of the 1 administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought.
(b) A request that the adjudicative officer order further proceedings under this section shall specifically identify the information sought or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues. ,
6 12.307 Decision.
(a) The adjudicative officer shall issue an initial decision on the application within 90 days after completion of proceedings on the application.
If the adjudicative officer fails to issue an initial ~ decision within 90 days. -
.he or she shall notify the parties of the reason for the delay and shall set a new deadline.
(b) The initial decision 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 shall also include, if at issue, findings on whether the !!RC'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 among the agencies, and shall explain the reasons for the allocation made.
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6 12.308 Acency review.
(a) Either the applicant or the NRC counsel may seek review of the initial decision on the fee application, or the Commission may decide to review the decision on its own initiative, in accordance with the Commission's review procedures set out in 10 CFR 2.786. The filing of a petition for review is mandatory for a party to exhaust its administrative remedies before seeking judicial review. If 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. ,
(b) Notwithstanding anything to the contrary in any other part of the Commission's regulations, the initial decision shall be inoperative (i.e., the decision shall not be final and any award made shall not be paid) until the later of--
(1) The expiration of the forty-day period provided in paragraph (a) ,
of this section; or (2) If within the forty-day period provided in paragraph (a) of this.
section the Commissica elects to review the decision, the Commission's issuance of a final decision on review of the initial decision.
(c) Whether to review a decision on its own motion is a matter within the discretion of the Commission. If review is taken, the Commission will ,
issue a final decision on the application or remand the application to the adjudicative officer for further proceedings.
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m 6 12.309 Judicial review.
Judicial review of final agency decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2).
6 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 granted against the Commission, the applicant shall make the submission to the 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.
L Dated at Rockville, Maryland, thisMday of April 1994.
For the Nuclear Regulatory Commission
~
John,- Hoyle, /
Ass' ant Secretary of the Commission 26
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F CONGRESSIONAL CORRESPONDENCE SYSTEM l DOCUMINT PREPARATION CHECELIST "his checklist is be submitted with each document,(or group of j Os/As) sent for 6 ing into the CCS. j Lg, i
- 1. BRIEF DESCRIPTION OF DOCUMENT (5) A d' LOAO
- 2. TTPE'0F- N Correspondanem IsaWa=(Q3g(M
- 3. DoCUMINT~ CONTROL 8ensitive (NRC only) Non-sensitive
- 4. CONGRZSSIONAL COMMITTEE and SUBCOMMITTEES (if applicable) I Congressional Committaa ,
Subcommittee
- 5. SUBJECT CODES l l
(a) ;
(b)
(C)
- 6. SOURCE OF DOCUMENTE (a) 5520 (document nana (b) Scan.. (c) Atf.achments (d) Rakey (e) Cther __
(c) Date returned to OCA for additional information ;
(d) Data resubmitted by-CCA to Ces <
~
(a) Data entered into CC8 by (f) Date oCA notified that document is in CCS 1
- 8. COMMENTS l l
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