[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39898-39900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19500]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[FCC 96-306]
Implementation of the Equal Acess to Justice Act in Agency
Proceedings
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Commission has amended its rules implementing the Equal
Access to Justice Act to conform to and carry out the intent of recent
amendments of that Act to permit recovery, in conjunction with
adversary adjudications commenced on or after March 29, 1996, of
attorney fees, not exceeding $125.00 per hour, and other expenses. In
addition, such an award is permitted when the demand of the Commission
for relief is substantially in excess of the decision in an adversary
adjudication and is unreasonable when compared with such decision,
under the facts and circumstances of the case, unless the party has
committed a willful violation of law or otherwise acted in bad faith,
or special circumstances make an award unjust. Finally, a small entity
as defined in 5 U.S.C. 601 is declared to be an eligible party for such
relief.
EFFECTIVE DATE: July 31, 1996.
FOR FURTHER INFORMATION CONTACT: John I. Riffer, Office of General
Counsel, (202) 418-1756.
SUPPLEMENTARY INFORMATION:
Adopted: July 15, 1996.
Released: July 18, 1996.
1. By this Order, we amend our rules implementing the Equal Access
to Justice Act (EAJA) for Commission proceedings in conformance with
recent amendments of that Act adopted as part of the Contract with
America Advancement Act of 1996, Pub. L. 104-121, 110 Stat. 847 (1996).
2. The pertinent provisions of the Contract with America
Advancement Act of 1996 amend the EAJA to permit recovery, in
conjunction with adversary adjudications commenced on or after March
29, 1996, of attorney fees, not exceeding $125.00 per hour, and other
expenses. In addition, the legislation provides for such an award when
the demand of the Commission for relief is substantially in excess of
the decision in an adversary adjudication and is unreasonable when
compared with such decision, under the facts and circumstances of the
case, unless the party has committed a willful violation of law or
otherwise acted in bad faith, or special circumstances make an award
unjust. Finally, the statute establishes that a small entity as defined
in 5 U.S.C. 601 is an eligible party for such relief. The revised
rules, as set forth below, simply incorporate the changes in the EAJA
and make those changes applicable to Commission proceedings. These
changes merely reiterate the specific terms of the statute and do not
involve any discretionary action. Under these circumstances, this
action comes within the ``good cause'' exemptions of the Administrative
Procedure Act, 5 U.S.C. 553(b)(B) and 553(d), and the notice and
comment and effective date provisions of the Administrative Procedure
Act are inapplicable.
3. Accordingly, it is ordered, That, effective July 31, 1996, part
1 is amended as set forth below.
List of Subjects in 47 CFR Part 1
Administrative practice and procedure, Federal Communications
Commission.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Part 1 of Chapter I of Title 47 of the Code of Federal Regulations
is amended as follows:
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for part 1 continues to read as follows:
Authority: 47 U.S.C. 151, 154, 303, and 309(j) unless otherwise
noted.
2. The second sentence of Sec. 1.1501 is revised to read as
follows:
Sec. 1.1501 Purpose of these rules.
* * * An eligible party may receive an award when it prevails over
the Commission, unless the Commission's position in the proceeding was
substantially justified or special circumstances make an award unjust,
or when the demand of the Commission is substantially in excess of the
decision in the adversary adjudication and is unreasonable when
compared with such decision, under the facts and circumstances of the
case, unless the party has committed a willful violation of law or
otherwise acted in bad faith, or special circumstances make an award
unjust. * * *
3. Section 1.1502 is revised to read as follows:
Sec. 1.1502 When the EAJA applies.
The EAJA applies to any adversary adjudication pending or commenced
before the Commission on or after August 5, 1985. The provisions of
Sec. 1.1505(b) apply to any adversary adjudications commenced on or
after March 29, 1996.
4. Section 1.1504 is amended by removing the period at the end of
paragraph (b)(5), adding in its place a semicolon, and adding a new
paragraph (b)(6) to read as follows:
Sec. 1.1504 Eligibility of applicants.
* * * * *
(6) For purposes of Sec. 1.1505(b), a small entity as defined in 5
U.S.C. 601.
* * * * *
[[Page 39899]]
5. Section 1.1505 is revised to read as follows:
Sec. 1.1505 Standards for awards.
(a) A prevailing party may receive an award for fees and expenses
incurred in connection either with an adversary adjudication, or with a
significant and discrete substantive portion of an adversary
adjudication in which the party has prevailed over the position of the
Commission.
(1) 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 agency upon which the adversary
adjudication is based.
(2) An award will be reduced or denied if the Commission's position
was substantially justified in law and fact, if special circumstances
make an award unjust, or if the prevailing party unduly or unreasonably
protracted the adversary adjudication.
(b) If, in an adversary adjudication arising from a Commission
action to enforce a party's compliance with a statutory or regulatory
requirement, the demand of the Commission is substantially in excess of
the decision in the adversary adjudication and is unreasonable when
compared with that decision, under the facts and circumstances of the
case, the party shall be awarded the fees and other expenses related to
defending against the excessive demand, unless the party has committed
a willful violation of law or otherwise acted in bad faith, or special
circumstances make an award unjust. The ``demand'' of the Commission
means the express demand which led to the adversary adjudication, but
it does not include a recitation by the Commission of the maximum
statutory penalty in the administrative complaint, or elsewhere when
accompanied by an express demand for a lesser amount.
(c) The burden of proof that an award should not be made is on the
appropriate Bureau (see Sec. 1.21) whose representative shall be called
``Bureau counsel'' in this subpart K.
6. The first sentence of Sec. 1.1506(b) is revised to read as
follows:
Sec. 1.1506 Allowable fees and expenses.
* * * * *
(b) No award for the fee of an attorney or agent under these rules
may exceed $75.00, or for adversary adjudications commenced on or after
March 29, 1996, $125.00, per hour. * * *
* * * * *
Sec. 1.1507 [Amended]
7. The first sentence of Sec. 1.1507(a) is amended by removing the
word ``attorney's'' and adding in its place the word ``attorneys'' and
by removing ``$75'' and adding in its place ``$125.00.''
Sec. 1.1508 [Amended]
8. The first sentence of Sec. 1.1508 is revised by removing the
word ``for'' and adding in its place the word ``or.''
9. Section 1.1511 is amended by revising paragraph (a) and the
introductory text of paragraph (b) to read as follows:
Sec. 1.1511 Contents of application.
(a) An application for an award of fees and expenses under EAJA
shall identify the applicant and the proceeding for which an award is
sought. Unless the applicant is an individual, the application shall
state the number of employees of the applicant and describe briefly the
type and purpose of its organization or business. The application shall
also:
(1) 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; or
(2) Show that the demand by the agency or agencies in the
proceeding was substantially in excess of, and was unreasonable when
compared with, the decision in the proceeding.
(b) The application shall also include a declaration that the
applicant is a small entity as defined in 5 U.S.C. 601 or 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 the statement concerning
its net worth if:
* * * * *
10. The first and second sentence of Sec. 1.1513 are revised to
read as follows:
Sec. 1.1513 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 hours spent in connection with the proceeding by
each individual, a description of the specific services performed, the
rate 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. * * *
11. Section 1.1514 is amended by revising paragraphs (a) and (c) to
read as follows:
Sec. 1.1514 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, or when the demand of the
Commission is substantially in excess of the decision in the
proceeding, but in no case later than 30 days after the Commission's
final disposition of the proceeding.
* * * * *
(c) For purposes of this rule, final disposition means the later of
(1) The date on which an initial decision or other recommended
disposition of the merits of the proceeding by an Administrative Law
Judge becomes administratively final;
(2) Issuance of an order disposing of any petitions for
reconsideration of the Commission's order in the proceeding;
(3) If no petition for reconsideration is filed, the last date on
which such petition could have been filed;
(4) Issuance of a final order by the Commission or any other final
resolution of a proceeding, such as settlement or voluntary dismissal,
which is not subject to a petition for reconsideration, or to a
petition for judicial review; or
(5) Completion of judicial action on the underlying controversy and
any subsequent Commission action pursuant to judicial mandate.
Sec. 1.1524 [Amended]
12. The first sentence of Sec. 1.1524 is amended by removing the
word ``often'' and adding in its place the word ``after.''
13. Section 1.1526(a) is revised to read as follows:
Sec. 1.1526 Further proceedings.
(a) Ordinarily, the determination of an award will be made on the
basis of the written record. However, on request of either the
applicant or Bureau counsel, or on his or her own initiative, the
Administrative Law Judge may order further proceedings, such as an
informal conference, oral argument, additional written submissions or,
as to issues other than excessive demand or substantial justification,
an evidentiary hearing. Such further proceedings shall be held only
when necessary for full and fair resolution of the issues arising from
the application, and shall be conducted as promptly as possible.
Whether or not the position of the
[[Page 39900]]
agency embodied an excessive demand or was substantially justified
shall be determined on the basis of the administrative record, as a
whole, which is made in the adversary adjudication for which fees and
other expenses are sought.
* * * * *
14. Section 1.1527 is revised to read as follows:
Sec. 1.1527 Decision.
The Administrative Law Judge shall issue an initial decision on the
application as soon as possible after completion of proceedings on the
application. The decision shall include written findings and
conclusions regarding the applicant's eligibility and whether the
applicant was a prevailing party or whether the demand by the agency or
agencies in the proceeding was substantially in excess of, and was
unreasonable when compared with, the decision in the adversary
adjudication, 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 Commission's
position substantially justified, whether the applicant unduly
protracted the proceedings, committed a willful violation of law, or
otherwise acted in bad faith, 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.
Sec. 1.1528 [Amended]
15. The first sentence of Sec. 1.1528 is amended by removing the
word ``fee.''
[FR Doc. 96-19500 Filed 7-30-96; 8:45 am]
BILLING CODE 6712-01-P
