[Federal Register Volume 61, Number 245 (Thursday, December 19, 1996)]
[Proposed Rules]
[Pages 66961-66965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31631]
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Part 2704
Implementation of Equal Access to Justice Act in Commission
Proceedings
AGENCY: Federal Mine Safety and Health Review Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Mine Safety and Health Review Commission is
proposing to revise its rules providing for the award of attorneys'
fees and other expenses under the Equal Access to Justice Act (EAJA), 5
U.S.C. 504, applicable to eligible individuals and entities who are
parties to administrative proceedings before the Commission. The
proposed revisions to the rules are in response to amendments to the
EAJA, enacted pursuant to Public Law 104-121, 110 Stat. 862 (1996), and
effective on March 29, 1996. The proposed rules authorize fee awards
under a newly-defined standard--when the Secretary of Labor's demand is
substantially in excess of the decision of the Commission and is
unreasonable when compared to that decision. The proposed rules also
expand the definition of a ``party'' eligible for an award under this
new standard to include ``a small entity'' as defined by 5 U.S.C. 601.
The maximum hourly rate for attorneys' fees in all EAJA cases before
the Commission is increased to $125. Finally, the Commission is
revising its rules to provide that parties submit EAJA applications to
the Chief Administrative Law Judge instead of the Chairman. The
Commission invites public comments on these proposed rules.
DATES: Comments should be received by January 21, 1997.
ADDRESSES: Comments should be sent to Richard L. Baker, Executive
Director, Federal Mine Safety and Health Review Commission, 1730 K
Street, NW, 6th Floor, Washington, DC 20006. For the convenience of
persons who will be reviewing the comments, it is requested that
commenters provide an original and three copies of their comments.
FOR FURTHER INFORMATION CONTACT: Norman M. Gleichman, General Counsel,
Office of the General Counsel, 1730 K Street, NW, 6th Floor,
Washington, DC 20006, telephone 202-653-5610 (202-566-2673 for TDD
Relay). These are not toll-free numbers.
SUPPLEMENTARY INFORMATION:
I. Background
Under the Commission's present rules, the EAJA applies to
administrative adjudications, brought pursuant to the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. 801 et seq., in which an
eligible party prevails over the Department of Labor's Mine Safety and
Health Administration. 29 CFR 2704.100 and 2704.103. Prior to the
enactment of Public Law 104-121, prevailing parties could receive
awards if they met the EAJA's eligibility standards (which set ceilings
on the net worth and number of employees) and if the government's
position was not ``substantially justified.''
Public Law 104-121 creates an additional standard under which
eligible parties can obtain fees in administrative adjudications. The
EAJA amendments authorize an award when a government ``demand'' is both
``substantially in excess of the decision of the adjudicative officer''
and ``unreasonable.'' Id. at 231(a). Under this standard, if the demand
by the Secretary of Labor is substantially in excess of the judgment
finally obtained by the Secretary and is unreasonable when compared
with that judgment under the facts and circumstances of the case, the
Commission shall award to the opposing party 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. Id.
Public Law 104-121 also establishes a separate definition of a
``party'' for fee awards under the new standard. Parties that are
eligible to apply for awards include ``small entit[ies] as defined in
section 601 [of title 5].'' Id. at 231(b)(2). Title 5 U.S.C. 601(6)
provides that ``small entity'' has ``the same meaning as the term[ ]
`small business'. . . .'' In turn, a ``small business'' is defined at 5
U.S.C. 601(3) as a ``small business concern'' under section 3 of the
Small Business Act (15 U.S.C. 632). Section 632(a) authorized the Small
Business Administration (SBA) to establish standards to specify when a
business concern is ``small.'' The SBA has recently issued updated size
standards for various types of economic activity, categorized by the
Standard Industrial Classification System (SIC). 13 CFR 121.105. In
defining the standards for small businesses engaged in mining, the SBA
regulations count either annual receipts or numbers of employees. The
number of employees or annual receipts specified is the maximum allowed
for a concern and its affiliates to be considered small. 13 CFR
121.201. The standards for the mining industry are as follows:
DIVISION B--MINING:
MAJOR GROUP 10--METAL MINING........ 500 employees.
MAJOR GROUP 12--COAL MINING......... 500 employees.
MAJOR GROUP 14--MINING AND QUARRYING 500 employees.
OF NON-METALLIC MINERALS, EXCEPT
FUELS.
EXCEPT:
1081 Metal Mining Services.......... $5 million.
1241 Coal Mining Services........... $5 million.
1481 Nonmetallic Minerals Services, $5 million.
Except Fuels.
13 CFR 121.201.
Finally, Public Law 104-121 increases the maximum fee award of an
attorney or agent from $75.00 to $125.00 per hour. Id. at 231(b)(1).
II. Analysis of the Regulations
The present language of Sec. 2704.100 providing for fee awards to
prevailing parties when the Secretary's position is not substantially
justified is unchanged. The Commission proposes to add new language to
the rule to provide that an eligible party may receive an award if the
demand of the Secretary is substantially in excess of the decision of
the Commission and is unreasonable when compared with that decision,
unless the applicant party has committed a willful violation of law or
otherwise acted in bad faith or special circumstances make an award
unjust. For purposes of this part, a decision of the Commission
includes not only a decision by the Commission but also a decision by
an administrative law judge that becomes final by operation by law.
The present language of Sec. 2704.102 is revised to specify that
recovery under the prevailing party standard is available for any
adversary adjudication commenced before the Commission after August 5,
1984. Proposed language provides that, where an applicant seeks an
award based on a substantially excessive and unreasonable demand of
[[Page 66962]]
the Secretary, the adversary adjudication before the Commission must
have commenced on or after March 29, 1996, the effective date of the
EAJA amendments.
In Sec. 2704.104(a) the Commission proposes to restate the
reference to 5 U.S.C. 551(3), which defines ``party'' in the
Administrative Procedure Act. The Commission proposes to add new
language referring to the eligibility conditions specified in
paragraphs (b) and (c).
Section 2704.104(b) states the eligibility requirements for an
applicant seeking an award based on prevailing party status. The
requirements in the present paragraph (b) are proposed in renumbered
form with one exception; references to charitable or tax exempt
organizations and units of local government have been deleted, because
it is not apparent that such organizations have ever been involved in a
Mine Act proceeding. Paragraph (c) states the standards for an
applicant seeking an award based on a substantially excessive and
unreasonable demand by the Secretary. Such an applicant must be a small
entity as defined in 5 U.S.C. 601. To qualify as a small business under
5 U.S.C. 601(3), the applicant must meet the requirements for a small
mining business concern as set forth by the SBA at 13 CFR 121.104,
121.106 and 121.201. Title 13 CFR 121.106 details the SBA's methodology
of counting employees, which differs from the Commission's present rule
for counting employees for purposes of determining eligibility of a
prevailing party.
The Commission proposes that it not reiterate the specific SBA
standards for ascertaining whether a mining operation is ``small''
because those standards are subject to revision periodically by the
SBA. Instead, the Commission proposes to notify the mining community,
by Federal Register publication, of changes in the SBA standards as
they occur. The Commission has omitted any reference to other types of
small entities contained in 5 U.S.C. 601, including ``small
organization,'' which pertains to not-for-profit enterprises, and
``small governmental jurisdiction,'' 5 U.S.C. 601(4) and (5), because
it is unlikely that any of these organizations will be involved in
proceedings under the Mine Act.
The Commission proposes to redesignate Sec. 2704.104(c) through (g)
and amend paragraphs (c) and (f), in conformance with the EAJA
amendments relating to eligibility, by adding language to the present
rules. Under proposed paragraph (d), the annual receipts, number of
employees or net worth of the applicant, as applicable, shall be
determined as of the date the underlying proceeding was initiated under
the Mine Act. Under proposed paragraph (g), the annual receipts,
numbers of employees or net worth, as applicable, of the applicant and
its affiliates shall be aggregated to determine eligibility. The
Commission proposes to leave unchanged, except for redesignating,
current paragraphs (d), (e), and (g).
Section 2704.105(a) sets forth the standards for an applicant
seeking an award based on prevailing party status and is unchanged
except that it is amended to include the sentence regarding denial or
reduction of an award because of unreasonable protraction in the
proceedings or special circumstances that is presently in paragraph
(b).
The proposed language in Sec. 2704.105(b) tracks the language of
Public Law 104-121 at section 231(a) and provides that, if the demand
of the Secretary is substantially in excess of the decision of the
Commission and is unreasonable when compared with such decision, under
the facts and circumstances of the case, the Commission shall award to
an eligible party applicant fees and expenses related to defending
against the excessive demand. Nevertheless, an award may not be made if
the applicant has committed a willful violation of law or otherwise
acted in bad faith or special circumstances make an award unjust.
Whether the applicant has unduly or unreasonably protracted the
underlying proceeding may also be considered. The proposed language
provides that the burden of proof is on the applicant to show that the
demand of the Secretary is substantially excessive and unreasonable.
The rule also defines ``demand'' by tracking language in the EAJA
amendments, Public Law 104-121 at section 231(b)(5)(F). While the
statutory language might suggest that the new standard of awards is
limited to penalty cases, that issue is best left to resolution in
individual case adjudication.
In conformity with the EAJA amendments, Sec. 2704.106(b) is amended
to provide that the maximum award for fees of an attorney or agent is
$125.00 per hour.
Section 2704.107(a) is amended to reflect that the highest award
for fees of an attorney or agent is $125.00 per hour. The term
``agent'' is added to the present rule to bring the rule into
conformity with the statutory language.
The present language of Sec. 2704.108 provides for awards only to
prevailing parties in cases where the Secretary's position is not
substantially justified. The Commission proposes to amend the rule to
add a reference to the new standard for recovery in the EAJA amendments
set forth in Sec. 2704.105(b). The rule provides that, if an applicant
is entitled to an award under either standard in Sec. 2704.105, the
award shall be made by the Commission against the Department of Labor.
Proposed Sec. 2704.201 designates the Chief Administrative Law
Judge as the Commission official to whom EAJA applications are
submitted, revising the present procedure requiring submission of
applications to the Chairman. The Commission further proposes to amend
present Sec. 2704.201(a) and (b) by moving their major portions
relating to the contents of an application by a prevailing party to
Sec. 2704.202. The remaining portions of the proposed rule set forth
the information common to applications based on either prevailing party
status or a substantially excessive and unreasonable demand by the
Secretary and are a redesignation of major portions of present
Sec. 2704.201(a) to (f).
In Sec. 2704.202(a) the Commission proposes to amend the present
rule by adding the requirements presently in Sec. 2704.201(a) for an
EAJA application by a prevailing party. Present Sec. 2704.202(b) is
redesignated as Sec. 2704.204.
Proposed Sec. 2704.202(b) is primarily a redesignation of present
Sec. 2704.201(b) concerning the applicant's net-worth exhibit. Language
from present Sec. 2704.201(b) permitting a tax-exempt organization to
omit a net-worth statement has not been retained because of the low
likelihood that such an organization would ever be a party to a
Commission proceeding.
Present Sec. 2704.203 is redesignated as Sec. 2704.205. Proposed
Sec. 2704.203(a) amends the present rule by adding the new standard for
recovery. Proposed Sec. 2704.203(b) provides that the application must
show that the applicant is a small entity as defined in 5 U.S.C.
601(6). Paragraph (b) also refers to the SBA regulations at 13 CFR Part
121 and provides that the application shall include a statement of the
applicant's annual receipts or number of employees, where the applicant
seeks eligibility based on being a small business. Paragraph (b)
requires a brief description of the type and purpose of the applicant's
organization or business. Because the EAJA amendments rely on the SBA's
definition of ``small business concern,'' and because the SBA has
defined small business concerns engaged in mining in terms of annual
receipts or number of employees and has set forth its methodology for
[[Page 66963]]
calculating the annual receipts or number of employees (13 CFR 121.104
and 121.106), the Commission intends that parties be guided by those
regulations in meeting the SBA's standards of annual receipts or number
of employees to qualify as a ``small business.''
Present Sec. 2704.204 is redesignated as Sec. 2704.206. Proposed
Sec. 2704.204 is a redesignation of Sec. 2704.202(b). In addition, the
Commission proposes to modify the language in present Sec. 2704.202(b)
for regulating the public disclosure of financial information in the
networth and annual receipts exhibits. Present Sec. 2704.202(b) only
relates to the net-worth exhibit.
Proposed Sec. 2704.205 is a redesignation of present Sec. 2704.203.
Proposed Sec. 2704.206 is a redesignation of Sec. 2704.204.
Paragraph (a) adds new language that an application may also be filed
when a demand by the Secretary is substantially in excess of the
decision finally obtained in the case and unreasonable. In addition,
language has been added to provide for the filing of EAJA applications
with the Commission 30 days after final disposition by a court in the
event that an applicant wishes to file in light of the court's
disposition. See Dole v. Phoenix Roofing, Inc., 922 F.2d 1202 (5th Cir.
1991). Section 2704.206(b) proposes language to include the new
standard for recovery. Section 2704.206(c) is changed to delete an
inadvertent reference to section 105(a) of the Mine Act, 30 U.S.C.
815(a), in the definition of final Commission dispositions in the
present rule; in addition, references to Commission EAJA decisions in
Sec. 2704.307 and 2704.308 are deleted.
Proposed Sec. 2704.305 eliminates ``prevailing'' from present
Sec. 2704.305 to reflect that an EAJA award is no longer limited to
proceedings involving a prevailing party but includes those proceedings
in which the Secretary has made a substantially excessive and
unreasonable demand.
Because an EAJA award is no longer limited to a prevailing party,
language has been added to Sec. 2704.307 to provide for the issuance of
written findings and conclusions covering whether the applicant has
been subjected to a substantially excessive and unreasonable demand.
Commission judges are instructed to make specific findings depending on
whether the application was filed pursuant to Sec. 2704.105 (a) or (b).
III. Matters of Regulatory Procedure
The Commission has determined that these rules are not subject to
Office of Management and Budget review under Executive Order 12866.
The Commission has determined under the Regulatory Flexibility Act
(5 U.S.C. 601-612) that these rules, if adopted, would not have a
significant economic impact on a substantial number of small entities.
Therefore, a Regulatory Flexibility Statement and Analysis has not been
prepared.
The Commission has determined that the Paperwork Reduction Act (44
U.S.C. 3501 et seq.) does not apply because these rules do not contain
any information collection requirements that require the approval of
the Office of Management and Budget.
List of Subjects in CFR Part 2704
Administrative practice and procedure, Equal access to justice.
For the reasons set out in the preamble, it is proposed that 29 CFR
part 2704 be amended as follows:
PART 2704--IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN
COMMISSION PROCEEDINGS
1. The authority citation for part 2704 is revised to read as
follows:
Authority: Pub. L. 96-481, 94 Stat. 2325 (5 U.S.C. 504(c)(1));
Pub. L. 99-80, 99 Stat. 183; Pub. L. 104-121, 110 Stat. 862.
Subpart A--General Provisions
2. Section 2704.100 is revised to read as follows:
Sec. 2704.100 Purpose of these rules.
The Equal Access to Justice Act, 5 U.S.C. 504, provides for the
award of attorney fees and other expenses to eligible individuals and
entities who are parties to certain administrative proceedings (called
``adversary adjudications'') before this Commission. An eligible party
may receive an award when it prevails over the Department of Labor,
Mine Safety and Health Administration (MSHA), unless the Secretary of
Labor's position in the proceeding was substantially justified or
special circumstances make an award unjust. In addition to the
foregoing ground of recovery, an eligible party may receive an award if
the demand of the Secretary is substantially in excess of the decision,
unless the applicant party has committed a willful violation of law or
otherwise acted in bad faith, or special circumstances make an award
unjust. The rules in this part describe the parties eligible for each
type of awards. They also explain how to apply for awards, and the
procedures and standards that this Commission will use to make the
awards.
3. Section 2704.102 is revised to read as follows:
Sec. 2704.102 Applicability.
Section 2704.105(a) applies to adversary adjudications before the
Commission pending or commenced on or after August 5, 1984. Section
2704.105(b) applies to adversary adjudications commenced on or after
March 29, 1996.
4. Section 2704.104 is amended by revising paragraphs (b) through
(e) and removing paragraphs (f) and (g) to read as follows:
Sec. 2704.104 Eligibility of applicants.
* * * * *
(b) For purposes of awards under Sec. 2704.150(a) for prevailing
parties:
(1) 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;
(2) 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 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 part, unless the administrative law judge 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 administrative law judge may determine that
financial relationships of the applicant other than those described in
this paragraph constitute special circumstances that would make an
award unjust.
(3) 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.
(4) The types of eligible applicants are as follows--
(i) An individual with a net worth of not more than $2 million;
(ii) The sole owner of an unincorporated business who has a net
worth of not more than $7 million, including both personal and business
interests, and employs not more than 500 employees;
[[Page 66964]]
(iii) Any other partnership, corporation, association, or public or
private organization with a net worth of not more than $7 million and
not more than 500 employees;
(c) For the purposes of awards under Sec. 2704.105(b), eligible
applicants are small entities as defined in 5 U.S.C. 601, subject to
the annual-receipts and number-of-employees standards as set forth by
the Small Business Administration at 30 CFR part 121;
(d) For the purpose of eligibility, the net worth, number of
employees, or annual receipts of an applicant, as applicable, shall be
determined as of the date the underlying proceeding was initiated under
the Mine Act.
(e) 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.
5. Section 2704.105 is revised as follows:
Sec. 2704.105 Standards for awards.
(a) A prevailing applicant may receive an award of fees and
expenses incurred in connection with a proceeding, or in a significant
and discrete substantive portion of the proceeding, unless the position
of the Secretary was substantially justified. The position of the
Secretary includes, in addition to the position taken by the Secretary
in the adversary adjudication, the action or failure to act by the
Secretary upon which the adversary adjudication is based. The burden of
proof that an award should not be made to a prevailing applicant
because the Secretary's position was substantially justified is on the
Secretary, who may avoid an award by showing that his position was
reasonable in law and fact. An award will be reduced or denied if the
applicant has unduly or unreasonably protracted the underlying
proceeding or if special circumstances make the award unjust.
(b) If the demand of the Secretary is substantially in excess of
the decision of the Commission and is unreasonable when compared with
such decision, under the facts and circumstances of the case, the
Commission shall award to an eligible applicant the fees and expenses
related to defending against the excessive demand, unless the applicant
has committed a willful violation of law or otherwise acted in bad
faith or special circumstances make an award unjust. The burden of
proof that the demand of the Secretary is substantially in excess of
the decision of the Commission and is unreasonable when compared with
such decision is on the applicant. As used in this section, ``demand''
means the express demand of the Secretary which led to the adversary
adjudication, but does not include a recitation by the Secretary of the
maximum statutory penalty--
(1) In the administrative complaint, or
(2) Elsewhere when accompanied by an express demand for a lesser
amount.
6. Section 2704.106(b) is revised to read as follows:
Sec. 2704.106 Allowable fees and expenses.
* * * * *
(b) No award for the fee of an attorney or agent under this part
may exceed $125.00 per hour. No award to compensate an expert witness
may exceed the highest rate at which the Secretary of Labor 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 such
expenses.
* * * * *
7. Section 2704.107(a) is revised to read as follows:
Sec. 2704.107 Rulemaking on maximum rates for attorney fees.
(a) If warranted by an increase in the cost of living or by special
circumstances (such as limited availability of attorneys qualified to
handle certain types of proceedings), the Commission may adopt
regulations providing that the fees of an attorney or agent may be
awarded at a rate higher than $125.00 per hour in some or all of the
types of proceedings covered by this part.
* * * * *
8. Section 2704.108 is revised to read as follows:
Sec. 2704.108 Awards.
If an applicant is entitled to an award because it has met its
burden of proof under Sec. 2704.105 (a) or (b), the award shall be made
by the Commission against the Department of Labor.
9. Subpart B is revised to read as follows:
Subpart B--Information Required From Applicants
Sec.
2704.201 Contents of application--in general.
2704.202 Contents of application--where the applicant has
prevailed.
2704.203 Contents of application--where the Secretary's demand is
substantially in excess of the judgment finally obtained and
unreasonable.
2704.204 Confidential financial information.
2704.205 Documentation of fees and expenses.
2704.206 When an application may be filed.
Subpart B--Information Required From Applicants
Sec. 2704.201 Contents of application--in general.
(a) An application for an award of fees and expenses under the Act
shall be made to the Chief Administrative Law Judge of the Commission
at 1730 K Street NW, 6th Floor, Washington, DC 20006. The application
shall identify the applicant and the underlying proceeding for which an
award is sought.
(b) The application shall state the amount of fees and expenses for
which an award is sought.
(c) 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.
(d) The application should 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.
(e) Upon receipt of an application, the Chief Administrative Law
Judge shall immediately assign it for disposition to the administrative
law judge who presided over the underlying Mine Act proceeding.
Sec. 2704.202 Contents of application--where the applicant has
prevailed.
(a) An application for an award under Sec. 2704.105(a) shall show
that the applicant has prevailed in a significant and discrete
substantive portion of the underlying proceeding and identify the
position of the Department of Labor in the proceeding 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 also shall 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, as
described in Sec. 2704.104(b)(2) of this part).
(c) Each applicant must provide with its application a detailed
exhibit showing the net worth of the applicant and any affiliates (as
described in Sec. 2704.104(b)(2) of this part) when the underlying
proceeding was initiated. The exhibit may be in any form convienient to
the applicant that
[[Page 66965]]
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 administrative law
judge may require an applicant to file additional information to
determine its eligibility for an award.
Sec. 2704.203 Contents of application--where the Secretary's demand is
substantially in excess of the judgment finally obtained and
unreasonable.
(a) An application for an award under Sec. 2704.105(b) shall show
that the Secretary's demand is both substantially in excess of the
decision of the Commission and is unreasonable when compared with such
decision.
(b) The application shall show that the applicant is a small entity
as defined in 5 U.S.C. 601(6) and must conform with the standards of
the Small Business Administration at 13 CFR 121.201 for mining
entities. The application shall include a statement of the applicant's
annual receipts or number of employees, as applicable, in conformance
with the requirements of 13 CFR 121.104 and 121.106. The application
shall describe briefly the type and purpose of its organization or
business.
Sec. 2704.204 Confidential financial information.
Ordinarily, the net-worth and annual receipts exhibits will be
included in the public record of the proceeding. However, an applicant
that objects to public disclosure of information in any portion of such
exhibits and believes there are legal grounds for withholding the
information from disclosure may submit that portion of the exhibit
directly to the administrative law judge in a sealed envelope labeled
``Confidential Financial Information,'' accompanied by a motion to
withhold the information from public disclosure. The motion shall
describe the information sought to be withheld and explain, in detail,
why it falls within one or more of the specific exemptions from
mandatory disclosure under the Freedom of Information Act, 5 U.S.C.
552(b)(1)-(9), why public disclosure of the information would adversely
affect the applicant, and why disclosure is not required in the public
interest. The material in question shall be served on counsel
representing the Secretary of Labor against whom the applicant seeks an
award, but need not be served on any other party to the proceeding. If
the administrative law judge 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 established procedures
under the Freedom of Information Act (29 CFR part 2702).
Sec. 2704.205 Documentation of fees and expenses.
The application shall be accompanied by full documentation of the
fees and expenses, including the cost of any study, analysis,
engineering report, test, project or similar matter, for which an award
is sought. A separate itemized statement shall be submitted for each
professional firm or individual whose services are covered by the
application, showing the hours spent in connection with the underlying
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. The administrative law judge may
require the applicant to provide vouchers, receipts, or other
substantiation for any expenses claimed.
Sec. 2704.206 When an application may be filed.
(a) An application may be filed whenever the applicant has
prevailed in the underlying proceeding or in a significant and discrete
substantive portion of that proceeding. An application may also be
filed when a demand by the Secretary is substantially in excess of the
decision of the Commission and is unreasonable when compared with such
decision. In no case may an application be filed later than 30 days
after the Commission's final disposition of the underlying proceeding,
or 30 days after issuance of a court judgment this is final and
nonappealable in any Commission adjudication that has been appealed
pursuant to section 106 of the Mine Act, 30 U.S.C. 816.
(b) If review or reconsideration is sought or taken of a decision
on the merits as to which an applicant has prevailed or has been
subjected to a demand from the Secretary substantially in excess of the
decision of the Commission and unreasonable when compared to that
decision, proceedings for the award of fees shall be stayed pending
final disposition of the underlying controversy.
(c) For purposes of this part, final disposition before the
Commission means the date on which a decision in the underlying
proceeding on the merits becomes final under sections 105(d) and 113(d)
of the Mine Act (30 U.S.C. 815(d), 823(d)).
Subpart C--Procedures for Considering Applications
10. Section 2704.305 is revised to read as follows:
Sec. 2704.305 Settlement.
If an applicant and counsel for the Secretary agree on a proposed
settlement of an award before an application has been filed, the
application shall be filed with the proposed settlement.
11. Section 2704.307 is revised to read as follows:
Sec. 2704.307 Decision of administrative law judge.
The administrative law judge shall issue an initial decision on the
application within 75 days after completion of proceedings on the
application. In all decisions on applications, the administrative law
judge shall include written findings and conclusions on the applicant's
eligibility, an explanation of the reasons for any difference between
the amount requested and the amount awarded. As to applications filed
pursuant to Sec. 2704.105(a), the administrative law judge shall also
include findings on the applicant's status as a prevailing party and
whether the position of the Secretary was substantially justified; if
at issue, the judge shall also make findings whether the applicant
unduly protracted or delayed the underlying proceeding or whether
special circumstances make the award unjust. As to applications filed
pursuant to Sec. 2704.105(b), the administrative law judge shall
include findings that the Secretary made a demand that is substantially
in excess of the decision of the Commission and unreasonable when
compared with that decision; if a issue, the judge shall also make
findings whether the applicant has committed a willful violation of the
law or otherwise acted in bad faith or whether special circumstances
make the award unjust. The initial decision by the administrative law
judge shall become final 40 days after its issuance unless review by
the Commission is ordered under Sec. 2704.308 of this part.
Issued this 6th day of December, 1996 at Washington, D.C.
Mary Lu Jordan,
Chairman, Federal Mine Safety and Health Review Commission.
[FR Doc. 96-31631 Filed 12-18-96; 8:45am]
BILLING CODE 6735-01-P
