[Code of Federal Regulations]
[Title 49, Volume 5, Parts 400 to 999]
[Revised as of October 1, 1998]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR826]

[Page 1098-1099] 
                        TITLE 49--TRANSPORTATION
                              SAFETY BOARD
Subpart C--Procedures for Considering Applications

Sec. 826.31  Filing and service of documents and general procedures.

    The rules contained in 49 CFR part 821 apply to proceedings under 
the Act, unless they are superseded by or are inconsistent with a 
provision of this part.

[59 FR 30532, June 14, 1994]

Sec. 826.32  Answer to application.

    (a) Within 30 days after service of an application, counsel 
representing the agency against which an award is sought may file an 
answer to the application. Unless agency counsel requests an extension 
of time for filing or files a statement of intent to negotiate under 
paragraph (b) of this section, failure to file an answer within the 30-
day period may be treated as a consent to the award requested.
    (b) If agency 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 agency counsel and the applicant.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on in support of agency 
counsel's position. If the answer is based on any alleged facts not 
already in the record of the proceeding, agency counsel shall include 
with the answer either supporting affidavits or a request for further 
proceedings under Sec. 826.36.

Sec. 826.33  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 
Sec. 826.36.

Sec. 826.34  Comments by other parties.

    Any party to a proceeding other than the applicant and agency 
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 raised in the comments.

Sec. 826.35  Settlement.

    The applicant and agency counsel may agree on a proposed settlement 
of the award before final action on the application, either in 
connection with a settlement of the underlying proceeding, or after the 
underlying proceeding has been concluded. If a prevailing party and 
agency counsel agree on a proposed settlement of an award before an 
application has been filed, the application shall be filed with the 
proposed settlement.

Sec. 826.36  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 agency counsel, or on his or her own initiative, the administrative 
law judge assigned to the matter 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.
    (b) A request that the administrative law judge order further 

[[Page 1099]]

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.

Sec. 826.37  Decision.

    The administrative law judge shall issue an initial decision on the 
application within 60 days after completion of proceedings on the 
application. 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.

Sec. 826.38  Board review.

    Either the applicant or agency counsel may seek review of the 
initial decision on the fee application, or the Board may decide to 
review the decision on its own initiative, in accordance with subpart H 
of part 821 for FAA safety enforcement matters appealed under section 
609 of the Federal Aviation Act. If neither the applicant nor agency 
counsel seeks review and the Board does not take review on its own 
initiative, the initial decision on the application shall become a final 
decision of the Board 30 days after it is issued. Whether to review a 
decision is a matter within the discretion of the Board. If review is 
taken, the Board will issue a final decision on the application or 
remand the application to the administrative law judge who issued the 
initial fee award determination for further proceedings.

Sec. 826.39  Judicial review.

    Judicial review of final Board decisions on awards may be sought as 
provided in 5 U.S.C. 504(c)(2).

Sec. 826.40  Payment of award.

    An applicant seeking payment of an award shall submit to the 
disbursing official of the FAA a copy of the Board'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. 
Applications for award grants in cases involving the FAA shall be sent 
to: The Office of Accounting and Audit, AAA-1, Federal Aviation 
Administration, 800 Independence Avenue, SW., Washington, DC 20591. 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 
adversary adjudication has been sought by the applicant or any other 
party to the proceeding.