[Federal Register Volume 63, Number 128 (Monday, July 6, 1998)]
[Rules and Regulations]
[Pages 36339-36344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-17803]
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FEDERAL TRADE COMMISSION
16 CFR Parts 0, 1, and 3
Organization, General Procedures, Rules of Practice for
Adjudicative Proceedings
AGENCY: Federal Trade Commission (FTC).
ACTION: Final rule.
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SUMMARY: The Commission is revising its Rules of Practice to
incorporate statutory requirements of the Small Business Regulatory
Enforcement Fairness Act concerning congressional review of certain
agency rules and publication of small entity guides for certain rules.
The revised rules also reflect statutory amendments to the Equal
Access to Justice Act as well as technical and interpretive
nonsubstantive changes to the rules governing claims under the Act.
EFFECTIVE DATES: These amendments are effective July 6, 1998.
FOR FURTHER INFORMATION CONTACT: Sandra M. Vidas, Attorney, (202) 326-
2456, Office of the General Counsel, FTC, Sixth Street & Pennsylvania
Avenue, N.W., Washington, D.C. 20580.
SUPPLEMENTARY INFORMATION: The Commission is amending Parts 0, 1, and 3
of its existing Rules of Practice to reflect the statutory provisions
of the Small Business Regulatory Enforcement Fairness Act (SBREFA),
Pub. L. 104-121, 110 Stat. 857 (1996) as that Act amends the
Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., the
Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, and the Equal
Access to Justice Act (EAJA), 5 U.S.C. 504.
The Commission is amending Part 1 by adding a new Subpart M
reflecting SBREFA's requirements concerning the submission of
information to Congress and the Comptroller General when the agency
issues or amends a rule or industry guide, or formally adopts an
interpretation or policy statement that constitutes a rule within the
meaning of 5 U.S.C. 804(3). The amendments also reflect SBREFA's
statutory requirements with respect to publication of small entity
compliance guides, and add references to the RFA and Paperwork
Reduction Act, (PRA), 44 U.S.C. 3501-3520, where appropriate.
The Commission is revising its rules governing EAJA claims to
reflect statutory amendments and to clarify certain provisions of the
Commission's existing EAJA rules. These clarifying amendments provide,
inter alia, additional information concerning filing time limits,
procedures, and allowable expenses to assist persons eligible to file
claims under the EAJA. The Commission is also amending Sec. 0.5 of its
rules, ``Laws authorizing monetary claims,'' to include a reference to
the EAJA and a new telephone contact number in the Office of the
General Counsel.
The Commission has determined that these rule amendments relate to
agency practice or are interpretive in nature. Accordingly, they are
not subject to the notice and comment requirements of the APA, 5 U.S.C.
553(b)(A), or to the RFA, 5 U.S.C. 601-612.
The submissions required by the amended rules with respect to
claims under the EAJA, 5 U.S.C. 504, do not likely constitute ``the
collection of information'' as that term is defined by the PRA.
Submission of a claim for fees occurs in connection with an
administrative proceeding with respect to a specific party and is
therefore exempt from PRA coverage. 5 CFR 1320.4(a)(2). In the event
that an EAJA claim is subject to the requirements of the PRA, the
Commission has previously received clearance for Part 3, Subpart I, of
the Rules of Practice, which specifies, inter alia, the documentation
necessary to support an application for reimbursement under the EAJA,
See 16 CFR 3.81-3.83 (OMB
[[Page 36340]]
Control Number 3084-0047, expiration date Sept. 30, 1998).
List of Subjects
16 CFR Part 0
Organization and functions (Government agencies).
16 CFR Part 1
Administrative practice and procedure.
16 CFR Part 3
Administrative practice and procedure.
For the reasons set forth in the preamble, the Federal Trade
Commission amends Title 16, Chapter 1, Subchapter A, of the Code of
Federal Regulations as follows:
PART 0--ORGANIZATION
1. The authority for part 0 continues to read as follows:
Authority: See 6(g), 38 Stat. 721 (15 U.S.C. 46); 80 Stat. 383
as amended (5 U.S.C. 552).
2. Section 0.5 is revised to read as follows:
Sec. 0.5 Laws authorizing monetary claims.
The Commission is authorized to entertain monetary claims against
it under three statutes. The Federal Tort Claims Act (28 U.S.C. 2671-
2680) provides that the United States will be liable for injury or loss
of property or personal injury or death caused by the negligent or
wrongful acts or omissions of its employees acting within the scope of
their employment or office. The Military Personnel and Civilian
Employees Claims Act of 1964 (31 U.S.C. 3701, 3721) authorizes the
Commission to compensate employees' claims for damage to or loss of
personal property incident to their service. The Equal Access to
Justice Act (5 U.S.C. 504 and 28 U.S.C. 2412) provides that an eligible
prevailing party other than the United States will be awarded fees and
expenses incurred in connection with any adversary adjudicative and
court proceeding, unless the adjudicative officer finds that the agency
was substantially justified or that special circumstances make an award
unjust. In addition, eligible parties, including certain small
businesses, will be awarded fees and expenses incurred in defending
against an agency demand that is substantially in excess of the final
decision of the adjudicative officer and is unreasonable when compared
with such decision under the facts and circumstances of the case,
unless the adjudicative officer finds that the party has committed a
willful violation of law or otherwise acted in bad faith, or special
circumstances make an award unjust. Questions may be addressed to the
Office of the General Counsel, (202) 326-2462.
PART 1--GENERAL PROCEDURES
1. The authority for part 1 continues to read as follows:
Authority: Sec. 6, 38 Stat. 721 (15 U.S.C. 46), unless otherwise
noted.
Subpart B--Rules and Rulemaking Under Section 18(a)(1)(B) of the
FTC Act
2. The authority for Subpart B is revised to read as follows:
Authority: 15 U.S.C. 46; 15 U.S.C. 57a; 5 U.S.C. 552; sec.
212(a), Pub. L. 104-121, 110 Stat. 857 (5 U.S.C. 601 note).
3. Section 1.11(b)(4) is revised to read as follows:
Sec. 1.11 Commencement of a rulemaking proceeding.
* * * * *
(b) * * *
(4) The information required by the Regulatory Flexibility Act, 5
U.S.C. 601-612, and the Paperwork Reduction Act, 44 U.S.C. 3501-3520,
if applicable.
4. In Sec. 1.14 paragraph (a)(2)(vi) is revised and paragraph
(a)(3) is added to read as follows:
Sec. 1.14 Promulgation.
(a) * * *
(2) * * *
(vi) The information required by the Regulatory Flexibility Act, 5
U.S.C. 601-612, and the Paperwork Reduction Act, 44 U.S.C. 3501-3520,
if applicable.
(3) Small entity compliance guide. For each rule for which the
Commission must prepare a final regulatory flexibility analysis, the
Commission will publish one or more guides to assist small entities in
complying with the rule. Such guides will be designated as ``small
entity compliance guides.''
* * * * *
Subpart C--Rules Promulgated Under Authority Other Than Section
18(a)(1)(B) of the FTC Act
1. The authority for Subpart C is added to read as follows:
Authority: 15 U.S.C. 46; 5 U.S.C. 552; Sec. 212(a), Pub. L. 104-
121, 110 Stat. 857 (5 U.S.C. 601 note).
2. Section 1.26 is amended by adding 3 sentences to the end of
paragraph (d) to read as follows:
Sec. 1.26 Procedure.
* * * * *
(d) Promulgation of rules or orders. * * * The Federal Register
publication will contain the information required by the Paperwork
Reduction Act, 44 U.S.C. 3501-3520, and the Regulatory Flexibility Act,
5 U.S.C. 601-612, if applicable. For each rule for which the Commission
must prepare a final regulatory flexibility analysis, the Commission
will publish one or more guides to assist small entities in complying
with the rule. Such guides will be designated as ``small entity
compliance guides.''
* * * * *
3. Subpart M, consisting of Sec. 1.99, is added to read as follows:
Subpart M--Submissions Under the Small Business Regulatory
Enforcement Fairness Act
Authority: 5 U.S.C. 801-804.
Sec. 1.99 Submission of rules, guides, interpretations, and policy
statements to Congress and the Comptroller General.
Whenever the Commission issues or substantively amends a rule or
industry guide or formally adopts an interpretation or policy statement
that constitutes a ``rule'' within the meaning of 5 U.S.C. 804(3), a
copy of the final rule, guide, interpretation or statement, together
with a concise description, the proposed effective date, and a
statement of whether the rule, guide, interpretation or statement is a
``major rule'' within the meaning of 5 U.S.C. 804(2), will be
transmitted to each House of Congress and to the Comptroller General.
The material transmitted to the Comptroller General will also include
any additional relevant information required by 5 U.S.C. 801(a)(1)(B).
This provision generally applies to rules issued or substantively
amended pursuant to Secs. 1.14(c), 1.15(a), 1.19, or 1.26(d); industry
guides issued pursuant to Sec. 1.6; interpretations and policy
statements formally adopted by the Commission; and any rule of agency
organization, practice or procedure that substantially affects the
rights or obligations of non-agency parties.
PART 3--RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS
1. The authority for part 3 continues to read as follows:
Authority: Section 6, 38 Stat. 721 (15 U.S.C. 46), unless
otherwise noted.
2. Subpart I is revised to read as follows:
[[Page 36341]]
Subpart I--Recovery of Awards Under the Equal Access to Justice Act in
Commission Proceedings
3.81 General provisions.
3.82 Information required from applicants.
3.83 Procedures for considering applicants.
Authority: 5 U.S.C. 504 and 5 U.S.C. 553(b).
Subpart I--Recovery of Awards Under the Equal Access to Justice Act
in Commission Proceedings
Sec. 3.81 General provisions.
(a.) Purpose of these rules. The Equal Access to Justice Act, 5
U.S.C. 504 (called ``the Act'' in this subpart), provides for the award
of attorney fees and other expenses to eligible individuals and
entities who are parties to adversary adjudicative proceedings under
part 3 of this title. The rules in this subpart describe the parties
eligible for awards, how to apply for awards, and the procedures and
standards that the Commission will use to make them.
(1.) When an eligible party will receive an award. An eligible
party will receive an award when:
(i) It prevails in the adjudicative proceeding, unless the
Commission's position in the proceeding was substantially justified or
special circumstances make an award unjust. Whether or not the position
of the agency was substantially justified will be determined on the
basis of the administrative record as a whole that is made in the
adversary proceeding for which fees and other expenses are sought; or
(ii) The agency's demand is substantially in excess of the decision
of the adjudicative officer, and is unreasonable when compared with
that decision, under all the facts and circumstances of the case.
``Demand'' means the express final demand made by the agency prior to
initiation of the adversary adjudication, but does not include a
recitation by the agency of the statutory penalty in the administrative
complaint or elsewhere when accompanied by an express demand for a
lesser amount.
(b.) When the Act applies. (1) Section 504(a)(1) of the Act applies
to any adversarial adjudicative proceeding pending before the
Commission at any time after October 1, 1981. This includes proceedings
begun before October 1, 1981, if final Commission action has not been
taken before that date.
(2) Section 504(a)(4) applies to any adversarial adjudicative
proceeding pending before the Commission at any time on or after March
29, 1996.
(c) Proceedings covered. (1) The Act applies to all adjudicative
proceedings under part 3 of the rules of practice as defined in
Sec. 3.2, except hearings relating to the promulgation, amendment, or
repeal of rules under the Fair Packaging and Labeling Act.
(2) [Reserved]
(d) Eligibility of applicants. (1) To be eligible for an award of
attorney fees and other expenses under the Act, the applicant must be a
party to the adjudicative proceeding in 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.
(2) 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 not more than 500 employees;
(iii) 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;
(iv) 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;
(v) 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; and
(vi) For purposes of receiving an award for fees and expenses for
defending against an excessive Commission demand, any small entity, as
that term is defined under 5 U.S.C. 601.
(3) Eligibility of a party shall be determined as of the date the
proceeding was initiated.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
(e) Standards for awards--(1) For a prevailing party:
(i) A prevailing applicant will receive an award for fees and
expenses incurred after initiation of the adversary adjudication in
connection with the entire adversary adjudication, or on a substantive
portion of the adversary adjudication that is sufficiently significant
and discrete to merit treatment as a separate unit unless the position
of the agency was substantially justified. The burden of proof that an
award should not be made to an eligible prevailing applicant is on
complaint counsel, which may avoid an award by showing that its
position had a reasonable basis in law and fact.
(ii) An award to prevailing party will be reduced or denied if the
applicant has unduly or unreasonably protracted the proceeding or if
special circumstances make an award unjust.
(2) For a party defending against an excessive demand:
(i) An eligible applicant will receive an award for fees and
expenses incurred after initiation of the adversary adjudication
related to defending against the excessive portion of a Commission
demand that is substantially in excess of the decision of the
adjudicative officer and is unreasonable when compared with that
decision under all the facts and circumstances of the case.
(ii) An award will be denied if the applicant has committed a
willful violation of law or otherwise acted in bad faith or if special
circumstances make an award unjust.
[[Page 36342]]
(f) Allowable fees and expenses. (1) 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 a reduced rate to the applicant.
(2) No award for the fee of an attorney or agent under these rules
may exceed the hourly rate specified in 5 U.S.C. 504(b)(1)(A). No award
to compensate an expert witness may exceed the highest rate at which
the Commission paid expert witnesses for similar services at the time
the fees were incurred. The appropriate rate may be obtained from the
Office of the Executive Director. 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.
(3) In determining the reasonableness of the fee sought for an
attorney, agent or expert witness, the Administrative Law Judge shall
consider the following:
(i) If the attorney, agent or 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;
(ii) The prevailing rate for similar services in the community in
which the attorney, agent or witness ordinarily performs services;
(iii) The time actually spent in the representation of the
applicant;
(iv) The time reasonably spent in light of the difficulty or
complexity of the issues in the proceeding; and
(v) Such other factors as may bear on the value of the services
provided.
(4) 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.
(5) Any award of fees or expenses under the Act is limited to fees
and expenses incurred after initiation of the adversary adjudication
and, with respect to excessive demands, the fees and expenses incurred
in defending against the excessive portion of the demand.
(g) Rulemaking on maximum rates for attorney fees. 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, upon its own initiative or on
petition of any interested person or group, adopt regulations providing
that attorney fees may be awarded at a rate higher than the rate
specified in 5 U.S.C. 504(b)(1)(A) per hour in some or all the types of
proceedings covered by this part. Rulemaking under this provision will
be in accordance with Rules of Practice Part 1, Subpart C of this
chapter.
Sec. 3.82 Information required from applicants.
(a) Contents of application. An application for an award of fees
and expenses under the Act shall contain the following:
(1) Identify of the applicant and the proceeding for which the
award is sought;
(2) A showing that the applicant has prevailed; or, if the
applicant has not prevailed, a showing that the Commission's demand was
the final demand before initiation of the adversary adjudication and
that it was substantially in excess of the decision of the adjudicative
officer and was unreasonable when compared with that decision;
(3) Identification of the Commission position(s) that applicant
alleges was (were) not substantially justified; or, identification of
the Commission's demand that is alleged to be excessive and
unreasonable and an explanation as to why the demand was excessive and
unreasonable;
(4) A brief description of the type and purpose of the organization
or business (unless the applicant is an individual);
(5) A statement of how the applicant meets the criteria of
Sec. 3.81(d);
(6) The amount of fees and expenses incurred after the initiation
of the adjudicative proceeding or, in the case of a claim for defending
against an excessive demand, the amount of fees and expenses incurred
after the initiation of the adjudicative proceeding attributable to the
excessive portion of the demand;
(7) Any other matters the applicant wishes the Commission to
consider in determining whether and in what amount an award should be
made; and
(8) A written verification under oath or under penalty or perjury
that the information provided is true and correct accompanied by the
signature of the applicant or an authorized officer or attorney.
(b) Net worth exhibit. (1) 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 application
and any affiliates (as defined in Sec. 3.81(d)(6)) 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
Administrative Law Judge may require an applicant to file additional
information to determine its eligibility for an award.
(2) Ordinarily, the net worth exhibit will be included in the
public record of the proceeding. However, if an applicant objects to
public disclosure of information in any portion of the exhibit and
believes there are legal grounds for withholding it from disclosure,
the applicant 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) through (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 complaint counsel 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 Sec. 4.11.
(c) Documentation of fees and expenses. The application shall be
accompanied by full documentation of the fees and expenses incurred
after initiation of the adversary adjudication, including the cost of
any study, analysis, engineering report, test, project or similar
matter, for which an award is sought. With respect to a claim for fees
and expenses involving an excessive demand, the application shall be
accompanied by full documentation of the fees and expenses incurred
after initiation of the adversary adjudication, including the cost of
any study, analysis, engineering report, test, project or similar
matter, for which an award is sought attributable to the portion of the
demand alleged to be excessive and unreasonable. 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
[[Page 36343]]
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. The Administrative Law
Judge may require the applicant to provide vouchers, receipts, or other
substantiation for any expenses claimed.
(d) When an application may be filed--(1) For a prevailing party.
(i) An application may be filed not later than 30 days after the
Commission has issued an order or otherwise taken action that results
in final disposition of the proceeding.
(ii) If review or reconsideration is sought or taken of a decision
as to which an applicant believes it has prevailed, proceedings for the
award of fees shall be stayed pending final disposition of the
underlying controversy.
(2) For a party defending against an excessive demand:
(i) An application may be filed not later than 30 days after the
Commission has issued an order or otherwise taken action that results
in final disposition of the proceeding.
(ii) If review or reconsideration is sought or taken of a decision
as to which an applicant believes the agency's demand was excessive and
unreasonable, proceedings for the award of fees and expenses shall be
stayed pending final disposition of the underlying controversy.
(3) For purposes of this subpart, ``final disposition'' means the
later of--
(i) The date that the initial decision of the Administrative Law
Judge becomes the decision of the Commission pursuant to Sec. 3.51(a);
(ii) The date that the Commission issues an order disposing of any
petitions for reconsideration of the Commission's final order in the
proceeding; or
(iii) The date that the Commission issues a final order or any
other final resolution of a proceeding, such as a consent agreement,
settlement or voluntary dismissal, which is not subject to a petition
for reconsideration.
Sec. 3.83 Procedures for considering applicants.
(a) Filing and service of documents. Any application for an award
or other pleading or document related to an application shall be filed
and served on all parties as specified in Secs. 4.2 and 4.4(b) of this
chapter, except as provided in Sec. 3.82(b)(2) for confidential
financial information. The date the Office of the Secretary of the
Commission receives the application is deemed the date of filing.
(b) Answer to application. (1) Within 30 days after service of an
application, complaint counsel may file an answer to the application.
Unless complaint counsel requests an extension of time for filing or
files a statement of intent to negotiate under paragraph (b)(2) of this
section, failure to file an answer within the 30-day period may be
treated as a consent to the award requested.
(2) If complaint 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 days, and further extensions may be granted by the Administrative
Law Judge upon request by complaint counsel and the applicant.
(3) The answer shall explain in detail any objections to the award
requested and identify the facts relied on in support of complaint
counsel's position. If the answer is based on any alleged facts not
already in the record of the proceeding, complaint counsel shall
include with the answer either supporting affidavits or a request for
further proceedings under paragraph (f) of this section.
(c) Reply. Within 15 days after service 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 paragraph (f) of this section.
(d) Comments by other parties. Any party to a proceeding other than
the applicant and complaint 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 Administrative Law Judge
determines that the public interest requires such participation in
order to permit full exploration of matters in the comments.
(e) Settlement. The applicant and complaint counsel may agree on a
proposed settlement of the award before final action on the
application. A proposed award settlement entered into in connection
with a consent agreement covering the underlying proceeding will be
considered in accordance with Sec. 3.25. The Commission may request
findings of fact or recommendations on the award settlement from the
Administrative Law Judge. A proposed award settlement entered into
after the underlying proceeding has been concluded will be considered
and may be approved or disapproved by the Administrative Law Judge
subject to Commission review under paragraph (h) of this section. If an
applicant and complaint counsel agree on a proposed settlement of an
award before an application has been filed, the application shall be
filed with the proposed settlement.
(f) Further proceedings. (1) Ordinarily, the determination of an
award will be made on the basis of the written record. However, on
request of either the applicant or complaint 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 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.
(2) A request that the Administrative Law Judge 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.
(g) Decision. The Administrative Law Judge shall issue an initial
decision on the application within 30 days after closing proceedings on
the application.
(1) For a decision involving a prevailing party: The 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
agency's position was substantially justified, whether the applicant
unduly protracted the proceedings, or whether special circumstances
make an award unjust.
(2) For a decision involving an excessive agency demand: The
decision shall include written findings and conclusions on the
applicant's eligibility and an explanation of the reasons why the
agency's demand was or was not determined to be substantially in excess
of the decision of the adjudicative officer and was or was not
unreasonable when compared with that decision. That decision shall be
based upon all the facts and circumstances of the case. The decision
shall also include, if at issue, findings on whether the applicant has
committed a willful violation of law or otherwise
[[Page 36344]]
acted in bad faith, or whether special circumstances make an award
unjust.
(h) Agency review. Either the applicant or complaint counsel may
seek review of the initial decision on the fee application by filing a
notice of appeal under Sec. 3.52(a), or the Commission may decide to
review the decision on its own initiative, in accordance with
Sec. 3.53. If neither the applicant nor complaint 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 Commission 30 days after it is issued. Whether to review a decision
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 Administrative Law Judge for further
proceedings.
(i) Judicial review. Judicial review of final Commission decisions
on awards may be sought as provided in 5 U.S.C. 503(c)(2).
(j) Payment of award. An applicant seeking payment of an award
shall submit to the Secretary of the Commission a copy of the
Commission'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. The agency will pay the amount awarded to the
applicant within 60 days, unless judicial review of the award or of the
underlying decision of the adjudicative proceeding has been sought by
the applicant or any party to the proceeding.
By direction of the Commission.
Benjamin I. Berman,
Acting Secretary.
[FR Doc. 98-17803 Filed 7-2-98; 8:45 am]
BILLING CODE 6750-01-M
