[Title 31 CFR 6]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 31 - MONEY AND FINANCE: TREASURY]
[Part 6 - APPLICATIONS FOR AWARDS UNDER THE EQUAL ACCESS TO JUSTICE ACT]
[From the U.S. Government Printing Office]
31MONEY AND FINANCE: TREASURY12002-07-012002-07-01falseAPPLICATIONS FOR AWARDS UNDER THE EQUAL ACCESS TO JUSTICE ACT6PART 6MONEY AND FINANCE: TREASURY
PART 6--APPLICATIONS FOR AWARDS UNDER THE EQUAL ACCESS TO JUSTICE ACT--Table of Contents
Subpart A--General Provisions
6.1 Purpose of these rules.
6.2 When the Act applies.
6.3 Proceedings covered.
6.4 Eligibility of applicants.
6.5 Standards for awards.
6.6 Allowable fees and other expenses.
6.7 Delegations of authority.
Subpart B--Information Required From Applicants
6.8 Contents of application.
6.9 Net worth exhibit.
6.10 Documentation of fees and expenses.
6.11 When an application may be filed.
Subpart C--Procedures for Considering Applications
6.12 Filing and service of documents.
6.13 Answer to application.
6.15 Agency review.
6.16 Judicial review.
6.17 Payment of award.
Authority: Sec. 203(a)(1), Pub. L. 96-481, 94 Stat. 2325 (5 U.S.C.
Source: 47 FR 20765, May 14, 1982, unless otherwise noted.
Subpart A--General Provisions
Sec. 6.1 Purpose of these rules.
The Equal Access to Justice Act, 5 U.S.C. 504 (called ``the Act'' in
this part), provides for the award of attorney fees and other expenses
to eligible individuals and entities who are parties to certain
administrative proceedings (called ``adversary adjudications'') before
agencies of the Government of the United States. An eligible party may
receive an award when it prevails over an agency, unless the agency's
position in the proceeding was substantially justified or special
circumstances make an award unjust. The rules in this part describe the
parties eligible for awards and the proceedings that are covered. They
also explain how to apply for awards, and the procedures and standards
that the Treasury Department will use to make them.
Sec. 6.2 When the Act applies.
The Act applies to any adversary adjudication pending before an
agency at any time between October 1, 1981 and September 30, 1984. This
includes proceedings begun before October 1, 1981, if final agency
action has not been taken before that date, and proceedings pending on
September 30, 1984, regardless of when they were initiated or when final
agency action occurs.
Sec. 6.3 Proceedings covered.
The Act applies to adversary adjudications required to be conducted
by the Treasury Department under 5 U.S.C. 554. Within the Treasury
Department, these proceedings are:
(a) Bureau of Alcohol, Tobacco and Firearms: (1) Permit proceedings
under the Federal Alcohol Administration Act (27 U.S.C. 204); (2) Permit
proceedings under the Internal Revenue Code of 1954 (26 U.S.C. 5171,
5271, 5713); (3) License and permit proceedings under the Federal
Explosives Laws (18 U.S.C. 843).
(b) Comptroller of the Currency:
All proceedings conducted under 12 CFR part 19, subpart A.
Sec. 6.4 Eligibility of applicants.
(a) To be eligible for an award of attorney fees and other expenses
under the Act, the applicant must be a party to the adversary
adjudication for which it seeks an award. The term ``party'' is defined
in 5 U.S.C. 551(3). The applicant must show that it meets all conditions
of eligibility set out in this subpart and has complied with the
requirements in Subpart B of this part.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more than $1 million;
(2) The sole owner of an unincorporated business who has a net worth
of not more than $5 million, including both personal and business
interests, and not more than 500 employees;
(3) 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;
(4) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141(a)) with not more than 500
(5) Any other partnership, corporation, association, or public or
private organization with a net worth of not more than $5 million and
not more than 500 employees.
(c) For the purpose of eligibility, the net worth and number of
employees of an applicant shall be determined as of the date the
proceeding was initiated.
(d) An applicant who owns an unincorporated business will be
considered as an ``individual'' rather than a ``sole owner of an
unincorporated business'' if the matter in controversy is primarily
related to personal interests rather than to business interests.
(e) 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
(f) The net worth and number of employees of the applicant and all
of its affiliates shall be aggregated to determine eligibility. Any
individual or group of individuals, corporation or other entity that
directly or indirectly controls or owns a majority of the voting shares
of another business, or controls in any manner the election of a
majority of that business's board of directors, trustees, or other
persons exercising similar functions, will be considered an affiliate of
that business for purposes of this part, unless the adjudicative officer
determines that such treatment would be unjust and contrary to the
purposes of the Act in light of the actual relationship between the
afffiliated entities. In addition, the adjudicative officer may
determine that financial relationships of the applicant other than those
described in this paragraph constitute special circumstances that would
make an award unjust.
(g) An applicant that participates in a proceeding primarily on
behalf of one or more other persons or entities that would be ineligible
is not itself eligible for an award.
Sec. 6.5 Standards for awards.
(a) A prevailing applicant may receive an award for fees and
expenses incurred in connection with the final disposition of a
proceeding, unless (1) the position of the agency was substantially
justified, or (2) special circumstances make the award unjust. No
presumption arises that the agency's position was not substantially
justified simply because the agency did not prevail.
(b) An award will be reduced or denied if the applicant has unduly
or unreasonably protracted the proceeding or if special circumstances
make the award sought unjust.
Sec. 6.6 Allowable fees and other expenses.
(a) The following fees and other expenses are allowable under the
(1) Reasonable expenses of expert witnesses;
(2) Reasonable cost of any study, analysis, engineering report,
test, or project which the agency finds necessary for the preparation of
the party's case;
(3) Reasonable attorney or agent fees.
(b) The amount of fees awarded will be based upon the prevailing
market rates for the kind and quality of services furnished, except that
(1) Compensation for an expert witness will not exceed the highest
rate paid by the agency for expert witnesses; and
(2) Attorney or agent fees will not be in excess of $75 per hour.
Sec. 6.7 Delegations of authority.
The Director, Bureau of Alcohol, Tobacco and Firearms and the
Comptroller of the Currency are authorized to take final action on
matters pertaining to the Equal Access to Justice Act, 5 U.S.C. 504, in
proceedings listed in Sec. 6.3 under the respective bureau or office.
The Secretary of the Treasury may by order delegate authority to
take final action on matters pertaining to the Equal Access to Justice
Act in particular cases to other subordinate officials.
Subpart B--Information Required From Applicants
Sec. 6.8 Contents of application.
(a) An application for an award of fees and expenses under the Act
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 agency in the proceeding that the applicant
alleges was not substantially justified. The application shall state the
basis for the applicant's belief that the position was not substantially
justified. Unless the applicant is an individual, the application shall
also state the number of employees of the applicant and describe briefly
the type and purpose of its organization or business.
(b) The application shall also include a statement that the
applicant's net worth does not exceed $1 million (if an individual) or
$5 million (for all other applicants, including their affiliates).
However, an applicant may omit this statement if:
(1) It attaches a copy of a ruling by the Internal Revenue Service
that it qualifies as an organization described in section 501(c)(3) of
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a
tax-exempt organization not required to obtain a ruling from the
Internal Revenue Service on its exempt status, a statement that
describes the basis for the applicant's belief that it qualifies under
such section; or
(2) It states that it is a cooperative association as defined in
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
(c) The application shall itemize the amount of fees and expenses
for which an award is sought.
(d) The application may also include any other matters that the
applicant wishes the agency to consider in determining whether and in
what amount an award should be made.
(e) The application shall be signed by the applicant or an
authorized officer with respect to the eligibility of the applicant and
by the attorney of the applicant with respect to fees and expenses
sought. It shall also contain or be accompanied by a written
verification under oath or under penalty of perjury that the information
provided in the application is true and correct.
(Approved by the Office of Management and Budget under control number
1512-0444, for applications filed with the Bureau of Alcohol, Tobacco
(5 U.S.C. 552(a) (80 Stat. 383, as amended))
[47 FR 20765, May 14, 1982, as amended at 49 FR 14944, Apr. 16, 1984]
Sec. 6.9 Net worth exhibit.
(a) Each applicant except a qualified tax-exempt organization, or
cooperative association must provide with its application a detailed
exhibit showing the net worth of the applicant and any affiliates (as
defined in Sec. 6.4(f)) when the proceeding was initiated. In the case
of national banking associations, ``net worth'' shall be considered to
be the total capital and surplus as reported, in conformity with the
applicable instructions and guidelines, on the bank's last Consolidated
Report of Condition filed before the initiation of the underlying
(b) The exhibit may be in any form convenient to the applicant that
provides full disclosure of the applicant's and its affiliates assets
and liabilities and is sufficient to determine whether the applicant
qualifies under the standards in this part. The adjudicative officer may
require an applicant to file additional information to determine its
eligibility for an award.
Sec. 6.10 Documentation of fees and expenses.
(a) The application shall be accompanied by full documentation of
the fees and expenses, including the cost of any study, engineering
report, test, or project, for which an award is sought.
(b) The documentation shall include an affidavit from any attorney,
agent, or expert witness representing or appearing in behalf of the
party, stating the actual time expended and the rate at which fees and
other expenses were computed and describing the specific services
(1) The affidavit shall state the services performed. In order to
establish the hourly rate, the affidavit shall state the hourly rate
which is billed and paid by the majority of clients during the relevant
(2) If not hourly rate is paid by the majority of clients because,
for instance, the attorney or agent represents most clients on a
contingency basis, the attorney or agent shall provide information about
two attorneys or agents with similar experience, who perform similar
work, stating their hourly rate.
(c) The documentation shall also include a description of any
expenses for which reimbursement is sought and a statement of the
amounts paid and payable by the applicant or by any other person or
entity for the services provided.
(d) The adjudicative officer may require the applicant to provide
vouchers, receipts, or other substantiation for any expenses claimed.
Sec. 6.11 When an application may be filed.
(a) An application may be filed whenever the applicant has prevailed
in the proceeding but in no case later than 30 days after the agency's
final disposition of the proceeding.
(b) If review or reconsideration is sought or taken of a decision as
to which an appplicant believes it has prevailed, proceedings for the
award of fees shall be stayed pending final disposition of the
Subpart C--Procedures for Considering Applications
Sec. 6.12 Filing and service of documents.
Any application for an award or other pleading or document related
to an application shall be filed and served on all parties to the
proceeding in the same manner as other pleadings in the proceeding.
Sec. 6.13 Answer to application.
(a) Within 30 days after service of an application, counsel
representing the agency against which an award is sought shall file an
answer to the application.
(b) If agency counsel 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 60 days and
further extensions may be granted by the adjudicative officer upon
request by agency counsel and the applicant.
(c) The answer shall explain any objections to the award requested
and identify the facts relied on in support of agency counsel's
position. If the answer is based on any alleged facts not already in the
record of the proceeding, agency counsel shall include with the answer
Sec. 6.14 Decision.
The adjudicative officer shall issue an initial decision on the
application within 60 days after completion of proceedings on the
application. The decision shall include written findings and conclusions
on the applicant's eligibility and status as a prevailing party, and an
explanation of the reasons for any difference between the amount
requested and the amount awarded. The decision shall also include, if at
issue, findings on whether the agency's position was substantially
justified, whether the applicant unduly protracted the proceedings, or
whether special circumstances make an award unjust.
Sec. 6.15 Agency review.
Either the applicant or agency counsel may seek review of the
initial decision on the fee application, or the agency may decide to
review the decision on its own initiative. If neither the applicant nor
agency counsel seeks a review and the agncy does not take review on its
own initiative, the initial decision on the application shall become a
final decision of the agency 30 days after it is issued. Whether to
review a decision is a matter within the discretion of the agency. If
review is taken, the agency will issue a final decision on the
application or remand the application to the adjudicative officer for
Sec. 6.16 Judicial review.
Judicial review of final agency decisions on awards may be sought as
provided in 5 U.S.C. 504(c)(2).
Sec. 6.17 Payment of award.
An applicant seeking payment of an award shall submit to the agency
a copy of the agency's final decision granting the award, accompanied by
a statement that the applicant will not seek review of the decision in
the United States courts. An applicant shall be paid the amount awarded
unless judicial review of the award or of the underlying decision of the
adversary adjudication has been sought by the applicant or any other
party to the proceeding.