[Code of Federal Regulations]
[Title 29, Volume 9]
[Revised as of July 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR2704.105]

[Page 656-657]
 
                             TITLE 29--LABOR
 
     CHAPTER XXVII--FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 
PART 2704--IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN COMMISSION PROCEEDINGS--Table of Contents
 
                      Subpart A--General Provisions
 
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

[[Page 657]]

law or otherwise acted in bad faith or special circumstances make an 
award unjust. The burden of proof is on the applicant to establish that 
the Secretary's demand was substantially in excess of the Commission's 
decision; the Secretary may avoid an award by establishing that the 
demand was not unreasonable when compared to that decision. 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.

[63 FR 63176, Nov. 12, 1998]