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Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations of the Office of Management and Budget OMB.
Congressional Review Act: These revisions do not constitute a rule, as defined by the Congressional Review Act, 5 U.S.C. 8043C, because they involve changes to agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties.
List of Subjects in 29 CFR Part 2204
Administrative practice and procedure, Equal access to justice.
For the reasons set forth in the preamble, the Review Commission revises 29 CFR part 2204 to read as follows:
PART 2204IMPLEMENTATION OF
THE EQUAL ACCESS TO JUSTICE
ACT IN PROCEEDINGS BEFORE THE
OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION
Subpart AGeneral Provisions Sec.
2204.101 Scope of this part.
Subpart BDefinitions 2204.201 Definitions.
Subpart CEAJA Application 2204.301 Application requirements.
2204.302 Net worth exhibit.
2204.303 Documentation of fees and expenses.
Subpart DProcedures for Considering Applications 2204.401 Filing and service of documents.
2204.402 Answer to application.
2204.403 Reply.
2204.404 Settlement.
2204.405 Further proceedings.
2204.406 Decision.
2204.407 Commission review.
2204.408 Judicial review.
2204.409 Stay of decision concerning award.
2204.410 Waiver.
2204.411 Payment of award.
Authority: 5 U.S.C. 504.

Subpart AGeneral Provisions
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2204.101

Scope of this part.

The Equal Access to Justice Act, 5
U.S.C. 504 called EAJA in this part, provides for the award of attorney or agent fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings called adversary adjudications before the Occupational Safety and Health Review Commission. An eligible party may receive an award when it prevails over the Secretary of Labor, unless the Secretarys position in the proceeding was substantially justified or special circumstances make an award unjust. Alternatively, an eligible party,
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even if not a prevailing party, may receive an award under 5 U.S.C.
504a4 when it successfully defends against an excessive demand made by the Secretary.
Subpart BDefinitions 2204.201

Definitions.

For the purposes of this part:
Adversary adjudication means an adjudication under 5 U.S.C. 554 and 29
U.S.C. 659c in which the position of the Secretary is represented by counsel or otherwise, subject to certain exclusions set forth in 5 U.S.C.
504b1C.
Agent means any person other than an attorney who represents a party in a proceeding before the Commission pursuant to 2200.22 of this chapter.
Commission means the Occupational Safety and Health Review Commission.
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.
Excessive demand means a demand by the Secretary, in an adversary adjudication arising from the Secretarys action to enforce a partys compliance with a statutory requirement that is substantially in excess of the decision of the judge or Commission and is unreasonable when compared with such decision, under the facts and circumstances of the case.
Final disposition means the date on which a decision or order disposing of the merits of the adversary adjudication or any other complete resolution of the adversary adjudication, such as a settlement or voluntary dismissal, become final and unappealable, both within the agency and to the courts.
Judge means the Administrative Law Judge appointed under 29 U.S.C. 661j who presided over the adversary adjudication or presides over an EAJA
proceeding.
Party means a party, as defined in 5
U.S.C. 5513, who is:
1 An individual whose net worth did not exceed $2,000,000 at the time the adversary adjudication was initiated; or 2 Any owner of an unincorporated business, or any partnership, corporation, association, unit of local government, or organization, the net worth of which did not exceed $7,000,000 at the time the adversary adjudication was initiated, and which had not more than 500 employees at the time the adversary adjudication was
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initiated; except that an organization described in section 501c3 of the Internal Revenue Code of 1986 exempt from taxation under section 501a of such Code, or a cooperative association as defined in section 15a of the Agricultural Marketing Act, may be a party regardless of the net worth of such organization or cooperative association.
For purposes of 5 U.S.C. 504a4, party also includes a small entity as defined in 5 U.S.C. 601.
Position of the Secretary means, 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, except that fees and other expenses may not be awarded to a party for any portion of the adversary adjudication in which the party has unreasonably protracted the proceedings.
Secretary means the Secretary of Labor.
Subpart CEAJA Application 2204.301

Application requirements.

a A party seeking an award under EAJA shall file an application with the judge that conducted the adversarial adjudication within 30 days after the final disposition of the adversary adjudication.
b The application shall identify the applicant and the proceeding for which an award is sought. The application shall show that the applicant has prevailed and identify the position of the Secretary that the applicant alleges was not substantially justified; or, if the applicant has not prevailed, shall show that the Secretarys demand was substantially in excess of the decision of the judge or Commission and was unreasonable when compared with that decision under the facts and circumstances of that case. The application shall also identify the Secretarys positions in the proceeding that the applicant alleges was were not substantially justified or the Secretarys demand that is alleged to be excessive and unreasonable. Unless the applicant is an individual, the application shall also state the number of employees of the applicant and briefly describe the type and purpose of its organization or business.
c The application shall also show that the applicant meets the definition of party in 2204.201, including adequate documentation of its net worth, as set forth in 2204.302.
d The application shall state the amount of fees and expenses for which an award is sought, subject to the requirements and limitations as set forth
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