[Code of Federal Regulations]
[Title 29, Volume 9]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR2704.105]

[Page 720-721]
 
                             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

[[Page 721]]

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 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]