[Code of Federal Regulations]
[Title 49, Volume 1]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR6.9]

[Page 52-53]
 
                        TITLE 49--TRANSPORTATION
 
          Subtitle A--Office of the Secretary of Transportation
 
PART 6_IMPLEMENTATION OF EQUAL ACCESS TO JUSTICE ACT IN AGENCY PROCEEDINGS
--Table of Contents
 
                      Subpart A_General Provisions
 
Sec.  6.9  Standards for awards.

    (a) An eligible applicant may receive an award for fees and expenses 
incurred by that party in connection with a decision in favor of the 
applicant in a proceeding covered by this Part, unless the position of 
the Department over which the applicant has prevailed was substantially 
justified or special circumstances make the award sought unjust. The 
burden of proof that an award should not be made to an eligible 
applicant is on the Department where it has initiated the proceeding. No 
presumption arises that the Department's position was not substantially 
justified simply because the Department did not prevail. Whether or not 
the position of the Department was substantially justified shall be 
determined on the basis of the administrative record, as a whole, in the 
adversary adjudication for which fees and other expenses are sought. The 
``position of the Department'' means, in addition to the position taken 
by the agency in the adversary adjudication, the action or failure to 
act by the Department upon which the adversary adjudication may be 
based.
    (b) In the context of a Departmental proceeding to enforce a party's 
compliance with a statutory or regulatory requirement, if the demand by 
the Department is substantially in excess of the amount awarded to the 
government pursuant to the decision of the adjudicative officer and is 
unreasonable when compared with such decision, under the facts and 
circumstances of the case, the adjudicative officer shall award to an 
eligible applicant party the fees and expenses related to defending 
against the excessive demand, unless the applicant party has committed a 
willful violation of law or otherwise acted in bad faith, or special 
circumstances make an award unjust. Fees and expenses awarded under this 
paragraph shall be paid only as a consequence of appropriations provided 
in advance. As used in this section, ``demand'' means the express demand 
of

[[Page 53]]

the Department which led to the adversary adjudication, but does not 
include a recitation by the Department of the maximum statutory penalty
    (i) In the administrative complaint, or
    (ii) Elsewhere when accompanied by an express demand for a lesser 
amount.
    (c) The decision of the Department on the application for fees and 
other expenses shall be the final administrative decision under this 
section.
    (d) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the proceeding.

[62 FR 19234, Apr. 21, 1997]