[Code of Federal Regulations]
[Title 49, Volume 7]
[Revised as of October 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR826.6]

[Page 180-181]
 
                        TITLE 49--TRANSPORTATION
 
           CHAPTER VIII--NATIONAL TRANSPORTATION SAFETY BOARD
 
PART 826_RULES IMPLEMENTING THE EQUAL ACCESS TO JUSTICE ACT OF 1980--Table of Contents
 
                      Subpart A_General Provisions
 
Sec.  826.6  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 
a reduced rate to the applicant.

[[Page 181]]

    (b)(1) No award for the fee of an attorney or agent under these 
rules may exceed $75 indexed as follows:
[GRAPHIC] [TIFF OMITTED] TR14JN94.001


The CPI to be used is the annual average CPI, All Urban Consumers, U.S. 
City Average, All Items, except where a local, All Item index is 
available. Where a local index is available, but results in a manifest 
inequity vis-a-vis the U.S. City Average, the U.S. City Average may be 
used. The numerator of that equation is the yearly average for the 
year(s) the services were provided, with each year calculated 
separately. If an annual average CPI for a particular year is not yet 
available, the prior year's annual average CPI shall be used. This 
formula increases the $75 statutory cap by indexing it to reflect cost 
of living increases, as authorized in 5 U.S.C. 504(b)(1)(A)(ii). 
Application of these increased rate caps requires affirmative findings 
under Sec.  821.6(c) of this chapter. For ease of application, available 
U.S. City figures are reproduced as follows:

1981.........................................................       90.9
1982.........................................................       96.5
1983.........................................................       99.6
1984.........................................................      103.9
1985.........................................................      107.6
1986.........................................................      109.6
1987.........................................................      113.6
1988.........................................................      118.3
1989.........................................................      124.0
1990.........................................................      130.7
1991.........................................................      136.2
1992.........................................................      140.3
1993.........................................................      144.5


    (2) No award to compensate an expert witness may exceed the highest 
rate at which the agency 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.
    (c) In determining the reasonableness of the fee sought for an 
attorney, agent, or expert witness, the administrative law judge shall 
consider the following:
    (1) 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;
    (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) Such other factors as may 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 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.

[46 FR 48209, Oct. 1, 1981, as amended at 58 FR 21544, Apr. 22, 1993; 59 
FR 30531, June 14, 1994]