[Code of Federal Regulations]
[Title 29, Volume 9]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR2204.105]

[Page 302-303]
 
                             TITLE 29--LABOR
 
      CHAPTER XX--OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
 
PART 2204_IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN PROCEEDINGS 
 
                      Subpart A_General Provisions
 
Sec. 2204.105  Eligibility of applicants.

    (a) To be eligible for an award of attorney or agent fees and other 
expenses under the EAJA, the applicant must be a party to the adversary 
adjudication. The term ``party'' is defined in 5 U.S.C. 551(3). The 
applicant must show that it satisfies the conditions of eligibility set 
out in this subpart and subpart B.
    (b) The types of eligible applicants are as follows:
    (1) The sole owner of an unincorporated business who has a net worth 
of not more than $7 million, including both personal and business 
interest, and employs not more than 500 employees;
    (2) 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;
    (3) 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;
    (4) Any other partnership, corporation, association, unit of local 
government, or public or private organization that has a net worth of 
not more than $7 million and employs not more than 500 employees; and

[[Page 303]]

    (5) An individual with a net worth of not more than $2 million.
    (c) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the notice 
of contest was filed, or, in the case of a petition for modification of 
abatement period, the date the petition was received by the Commission 
under Sec. 2200.34(d).
    (d) An applicant who owns an unincorporated business shall be 
considered as an ``individual'' rather than a ``sole owner of an 
unincorporated business'' only if the issues on which the applicant 
prevails are related primarily to personal interests rather than 
business interests.
    (e) For the purpose of determining eligibility under the EAJA, 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.
    (f) 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 such treatment would be unjust and contrary to the purposes 
of the EAJA in light of the actual relationship between the affiliated 
entities. In addition, financial relationships of the applicant other 
than those described in this paragraph may constitute special 
circumstances that would make an award unjust.

[46 FR 48080, Sept. 30, 1981, as amended at 52 FR 5456, Feb. 23, 1987; 
62 FR 59569, Nov. 4, 1997]