---
kind: "range"
citation: "43 C.F.R. §§ 4.603–4.605"
title: "43"
from: "4.603"
to: "4.605"
count: 3
url: "https://uscodex.org/cfr/43/4.603..4.605"
---

# §4.603. What proceedings are covered by this subpart?

- (a) The Act applies to adversary adjudications conducted by the Office of Hearings and Appeals, including proceedings to modify, suspend, or revoke licenses if they are otherwise adversary adjudications.
- (b) **The Act does not apply to—**
  - (1) Other hearings and appeals conducted by the Office of Hearings and Appeals, even if the Department uses procedures comparable to those in [5 U.S.C. 554](/usc/5/554.md) in such cases;
  - (2) Any proceeding in which the Department or other agency may prescribe a lawful present or future rate; or
  - (3) **Proceedings to grant or renew licenses.**
- (c) If a hearing or appeal includes both matters covered by the Act and matters excluded from coverage, any award made will include only fees and expenses related to covered issues.

# §4.604. When am I eligible for an award?

- (a) **To be eligible for an award of attorney fees and other expenses under the Act, you must—**
  - (1) Be a party to the adversary adjudication for which you seek an award; and
  - (2) **Show that you meet all conditions of eligibility in this section.**
- (b) **You are an eligible applicant if you are any of the following—**
  - (1) An individual with a net worth of $2 million or less;
  - (2) The sole owner of an unincorporated business who has a net worth of $7 million or less, including both personal and business interests, and 500 or fewer 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)](/usc/26/501.md?p=c-3)) with 500 or fewer employees;
  - (4) A cooperative association as defined in section 15(a) of the Agricultural Marketing Act ([12 U.S.C. 1141j(a)](/usc/12/1141j.md?p=a)) with 500 or fewer employees;
  - (5) Any other partnership, corporation, association, unit of local government, or organization with a net worth of $7 million or less and 500 or fewer employees; or
  - (6) For purposes of [§ 4.605(c)](/cfr/43/4.605.md?p=c), a small entity as defined in [5 U.S.C. 601(6)](/usc/5/601.md?p=6).
- (c) For the purpose of eligibility, your net worth and the number of your employees must be determined as of the date the proceeding was initiated.
  - (1) Your employees include all persons who regularly perform services for remuneration under your direction and control.
  - (2) Part-time employees must be included on a proportional basis.
- (d) **You are considered an “individual” rather than a “sole owner of an unincorporated business” if—**
  - (1) You own an unincorporated business; and
  - (2) The issues on which you prevail are related primarily to personal interests rather than to business interests.
- (e) To determine your eligibility, your net worth and the number of your employees must be aggregated with the net worth and the number of employees of all of your affiliates. However, this paragraph does not apply if the adjudicative officer determines that aggregation would be unjust and contrary to the purposes of the Act in light of the actual relationship between the affiliated entities.
- (f) The adjudicative officer may determine that financial relationships other than those described in the definition of “affiliate” in [§ 4.602](/cfr/43/4.602.md) constitute special circumstances that would make an award unjust.
- (g) If you participate in a proceeding primarily on behalf of one or more other persons or entities that would be ineligible, you are not eligible for an award.

# §4.605. Under what circumstances may I receive an award?

- (a) You may receive an award for your fees and expenses in connection with a proceeding if:
  - (1) You prevailed in the proceeding or in a significant and discrete substantive portion of a proceeding; and
  - (2) The position of the Department or other agency over which you prevailed was not substantially justified. The Department or other agency has the burden of proving that its position was substantially justified.
- (b) An award will be reduced or denied if you have unduly or unreasonably protracted the proceeding or if special circumstances make the award sought unjust.
- (c) This paragraph applies to an adversary adjudication arising from an action by the Department or other agency to enforce compliance with a statutory or regulatory requirement:
  - (1) If the demand of the Department or other agency in the action is excessive and unreasonable compared with the adjudicative officer's decision, then the adjudicative officer must award you your fees and expenses related to defending against the excessive demand, unless:
    - (i) You have committed a willful violation of law;
    - (ii) You have acted in bad faith; or
    - (iii) **Special circumstances make an award unjust.**
  - (2) Fees and expenses awarded under this paragraph will be paid only if appropriations to cover the payment have been provided in advance.