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Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations
in 5 U.S.C. 504b1A, with adequate documentation as set forth in 2204.303.
e The application shall be signed by the applicant or an authorized officer, attorney, or agent of the applicant. It shall also contain or be accompanied by a written verification under penalty of perjury that the information provided in the application is true and correct.
2204.302

Net worth exhibit.

a Each applicant except a qualified tax-exempt organization, cooperative association, or, in the case of an application for an award related to an allegedly excessive demand by the Secretary, a small entity as that term is defined by 5 U.S.C. 6016, shall provide with its application a detailed exhibit showing the net worth of the applicant as required by 2204.301c when the proceeding was initiated. The exhibit may be in any form convenient to the applicant that provides full disclosure of the applicants assets and liabilities and is sufficient to determine whether the applicant qualifies under excessive demand as defined in 2204.201. The judge or Commission may require an applicant to file additional information to determine its eligibility for an award.
b Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, an applicant that objects to public disclosure of information in any portion of the exhibit and believes there are legal grounds for withholding it from disclosure may request that the documents be filed under seal or otherwise be treated as confidential, pursuant to 2200.8 and 2200.52 of this chapter.

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2204.303
expenses.

Documentation of fees and
The application shall be accompanied by adequate documentation of the fees and other expenses incurred after the initiation of the adversary adjudication, including, but not limited to, the reasonable cost of any study, analysis, engineering report, test, or project. An application seeking an increase in fees to account for inflation pursuant to 2200.406 of this chapter shall also include adequate documentation of the change in the consumer price index for the attorney or agents locality. With respect to a claim for fees and expenses involving an excessive demand by the Secretary, the application shall be accompanied by adequate documentation of such fees and expenses incurred after initiation of the adversary adjudication for which an award is sought attributable to the portion of the demand alleged to be excessive and unreasonable. A separate
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itemized statement shall be submitted for each professional firm or individual whose services are covered by the application, showing the hours spent in connection with the proceeding by each individual, a description of the specific services performed, the rate at which each fee has been computed, any expenses for which reimbursement is sought, the total amount claimed, and the total amount paid or payable by the applicant or by any other person or entity for the services provided. The judge or Commission may require the applicant to provide vouchers, receipts, or other substantiation for any fees or expenses claimed.
Subpart DProcedures for Considering Applications 2204.401 Filing and service of documents.

Any application for an award, or any accompanying documentation related to an application shall be filed and served on all parties to the proceeding in accordance with 2200.7 and 2200.8 of this chapter, except as provided in 2204.302b for confidential financial information.
2204.402

Answer to application.

a Within 30 days after service of an application, the Secretary shall file an answer to the application. Unless the Secretary 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 the Secretary 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 judge upon request.
c The answer shall explain in detail any objections to the award requested and identify the facts relied on in support of the Secretarys position. If the answer is based on any alleged facts not already in the record of the proceeding, the Secretary shall include with the answer either supporting affidavits or a request for further proceedings under 2204.405.
2204.403

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
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affidavits or a request for further proceedings under 2204.405.
2204.404

Settlement.

The applicant and the Secretary may agree on a proposed settlement of the award before final action on the application, either in connection with a settlement of the underlying adversary adjudication, or after the adversary adjudication has been concluded, in accordance with the Commissions standard settlement procedures as set forth in 2200.120 of this chapter. If a prevailing party and the Secretary agree on a proposed settlement of an award before an application has been filed, the application shall be filed with the proposed settlement. If a proposed settlement of an underlying proceeding provides that each side shall bear its own expenses and the settlement is accepted, no application may be filed.
2204.405

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 the Secretary, or on his or her own initiative, the judge presiding over an EAJA proceeding may, if necessary for a full and fair decision on the application, order the filing of additional written submissions; hold oral argument; or allow for discovery or hold an evidentiary hearing, but only as to issues other than whether the agencys position was substantially justified such as those involving the applicants eligibility or substantiation of fees and expenses. Any written submissions shall be made, oral argument held, discovery conducted, and evidentiary hearing held as promptly as possible so as not to delay a decision on the application for fees.
Whether or not the position of the Secretary was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought.
b A request for 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.
2204.406

Decision.

The preparation and issuance of decision on the fee application shall be in accordance with 2200.90 of this chapter.
a For an application involving a prevailing party. The decision shall include written findings and conclusions on the applicants
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