[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: 29CFR2204.307]

[Page 306]
 
                             TITLE 29--LABOR
 
      CHAPTER XX--OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
 
PART 2204_IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN PROCEEDINGS 
 
            Subpart C_Procedures for Considering Applications
 
Sec. 2204.307  Further proceedings.

    (a)(1) The determination of an award shall be made on the basis of 
the record made during the proceeding for which fees and expenses are 
sought, except as provided in paragraphs (a)(2) and (a)(3) of this 
section.
    (2) On the motion of a party or on the judge's own initiative, the 
judge may order further proceedings, including discovery and an 
evidentiary hearing, as to issues other than substantial justification 
(such as the applicant's eligibility or substantiation of fees and 
expenses).
    (3) If the proceeding for which fees and expenses are sought ended 
before the Secretary had an opportunity to introduce evidence supporting 
the citation or notification of proposed penalty (for example, a 
citation was withdrawn or settled before an evidentiary hearing was 
held), the Secretary may supplement the record with affidavits or other 
documentary evidence of substantial justification.
    (b) A request that the judge order further proceedings 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.

[46 FR 48080, Sept. 30, 1981, as amended at 52 FR 5457, Feb. 23, 1987]