(e) Computation of Time. Saturdays, Sundays and Federal holidays shall be included in computing the time allowed for the filing of any document or paper: Provided, That when such time expires on a Saturday, Sunday or Federal holiday, such period shall be extended to include the next following business day. § 1.175 Procedure following entry of cease and desist order. (a) Request for Judicial Review. An association subject to a cease and desist order may, within thirty days following the date of the order, request the Secretary to institute proceedings for judicial review of the order. Such request shall, to the extent practicable, identify findings of fact, conclusions of law, and any part of the order which the association claims are in error. The Secretary shall, thereupon, file in the district in the judicial district in which such association has its principal place of business, a certified copy of the order and of all records in the proceeding, including the request of the association, together with a petition asking that the order be affirmed and enforced. (b) Enforcement. If an association subject to a cease and desist order fails or neglects, within thirty days of the date of the order, or at any time thereafter, to obey such order, and has not made a request for judicial review as provided above, the Secretary shall file in the district court in the judicial district in which such association has its principal place of business a certified copy of the order and of all records in the proceeding, together with a petition asking that the order be enforced. (c) Notice. The Secretary shall give notice of the filing of a petition for enforcement or review to the Attorney General, and to the association, by service of a copy of the petition. Subpart J-Procedures Relating to Awards Under the Equal Access to Justice Act in Proceedings Before the Department AUTHORITY: Sec. 203(a)(1), Pub. L. 96-481, 94 Stat. 2325 (5 U.S.C. 504(c)(1)). (a) The definitions contained in Subpart H-Rules of Practice Governing Formal Adjudicatory Proceedings (§ 1.132 of this part) are incorporated into and made applicable to this subpart. (b) "Agency counsel" means the attorney from the Office of the General Counsel representing the agency of the Department administering the statute involved in the proceeding. § 1.181 Purpose of these rules. The Equal Access to Justice Act, 5 U.S.C. 504 (called "the Act" in this subpart), 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 the Department of Agriculture. An eligible party may receive an award when it prevails over the Department unless the Department's position in the proceeding was substantially justified or special circumstances make an award unjust. The rules in this subpart describe the parties eligi ble for awards and the proceedings that are covered. They also explain how to apply for awards, and the procedures and standards that this Department will use to make them. § 1.182 When the Act applies. The Act applies to any adversary adjudication pending before this Department at any time between October 1, 1981, and September 30, 1984. This includes proceedings begun before October 1, 1981, if final Departmental action has not been taken before that date, and proceedings pending on September 30, 1984, regardless of when they were initiated or when final Departmental action occurs. § 1.183 Proceedings covered. (a) These rules apply to adversary adjudications required by statute to be conducted by this Department under 5 U.S.C. 554 in which the position of the Department is presented by an attor ey or other representative who enters n appearance and participates in the roceeding. Proceedings before the Department's Board of Contract Apeals are not covered. Any proceeding n which this Department may precribe a lawful present or future rate s not covered by the Act. Proceedings o grant or renew licenses are also exluded, but proceedings to modify, susend, or revoke licenses are covered if hey are otherwise adversary adjudicaions. The proceedings covered are adversary adjudications under the statucory provisions listed below. Agricultural Marketing Agreement Act of Beef Research and Information Act (7 Capper-Volstead Act (7 U.S.C. 292) Cotton Research and Promotion Act (7 U.S.C. 2111) Egg Products Inspection Act (21 U.S.C. 1047) Egg Research and Consumer Information Act (7 U.S.C. 2713, 2714(b)) Endangered Species Act (16 U.S.C. 1540(a)) Federal Land Policy and Management Act (43 U.S.C. 1766) Federal Meat Inspection Act (21 U.S.C. 604, 606, 607(e), 608, 671) Federal Seed Act (7 U.S.C. 1599) Horse Protection Act (15 U.S.C. 1823(c), 1825) Packers and Stockyards Act (7 U.S.C. 193, 204, 213, 218d, 221) Perishable Agricultural Commodities Act (7 Poultry Products Inspection, Act (21 U.S.C. Swine Health Protection Act (7 U.S.C. 3804(b), 3805(a)) U.S. Cotton Standards Act (7 U.S.C. 51b, 53) U.S. Warehouse Act (7 U.S.C. 246, 253) (b) If a proceeding includes both matters covered by the Act and matters specifically excluded from coverage, any award made will include only fees and expenses related to covered issues. §1.184 Eligibility of applicants. (a) To be eligible for an award of attorney fees and other expenses under the Act, the applicant must be a prevailing 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 section and in §§ 1.188 and 1.189. (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. 1141j(a)) with not more than 500 employees; and (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 issues on which the applicant prevails are related primarily 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 included on a proportional basis. (f) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility. Any individual, cor poration or other entity that directly or indirectly controls or owns a majority of the voting shares or other interest of the applicant, or any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest, will be considered an affiliate for purposes of this subpart, unless the Judge determines such treatment would be unjust and contrary to the purposes of the Act in light of the actual relationship between the affiliated entities. In addition, the Judge 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. (a) A prevailing applicant may receive an award for 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 agency over which the applicant has prevailed was substantially justified. The burden of proof that an award should not be made to an eligible prevailing applicant is on the agency counsel, which may avoid an award by showing that its position was reasonable in law and fact. (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. § 1.186 Allowable fees and expenses. (a) Awards will be based on the prevailing market rates for the kind and quality of service furnished. (b) No award for the fee of an attorney or agent under these rules may exceed $75.00 per hour. No award to compensate an expert witness may exceed the highest rate at which this agency pays expert witnesses, which is set out at § 1.150 of this part. However, an award may also include the rea sonable expenses of the attorney, agent, or witness as a separate item, if the attorney, agent, or witness ordinarily charges clients separately for such expenses. (c) In determining the reasonableness of the fee sought for an attorney, agent or expert witness, the Judge shall consider the following: (1) If the attorney, agent or witness is in private practice, his or her customary fee for similar services, or, if an employee of the applicant, the fully allocated cost of the services; (2) The prevailing rate for similar services in the community in which the attorney, agent or witness ordinarily performs services; (3) The time actually spent in the representation of the applicant; (4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and (5) Such other factors as may bear on the value of the services provided. (d) The reasonable cost of any study, analysis, engineering report, test, project or similar matter prepared on behalf of a party may be awarded, to the extent that the charge for the service does not exceed the prevailing rate for similar services, and the study or other matter was necessary for preparation of the applicant's case. § 1.187 Delegations of authority. The Secretary of Agriculture delegates to the Judicial Officer authority to take final action on matters pertaining to the Act in proceedings coVered by these rules. The Secretary by order may delegate authority to take final action on matters pertaining to the Act in particular cases to other subordinate officials or bodies. INFORMATION REQUIRED FROM APPLICANTS § 1.188 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 this Department in the proceeding that the applicant alleges was not substantially justified and shall briefly state the basis for such allegation. 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 state 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 this Department 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 or attorney of the applicant. It shall contain or be accompanied by a written verification under oath or affirmation under penalty of perjury that the information provided in the application and all accompanying material is true and complete to the best of the signer's information and belief. § 1.189 Net worth exhibit. (a) An 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 § 1.184) when the proceeding was initiated. 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 Judge 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 submit that portion of the exhibit directly to the Judge in a sealed envelope labeled "Confidential Financial Information," accompanied by a motion to withhold the information from public disclosure. The motion shall describe the information sought to be withheld and explain, in detail, why it falls within one or more of the specific exemptions from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552(b) (1) through (9), why public disclosure of the information would adversely affect the applicant, and why disclosure is not required in the public interest. The material in question shall be served on counsel representing the agency against which the applicant seeks an award, but need not be served on any other party to the proceeding. If the Judge finds that the information should not be withheld from disclosure, it shall be placed in the public record of the proceeding. Otherwise, any request to inspect or copy the exhibit shall be disposed of in accordance with this Department's established procedures under the Freedom of Information Act (§§ 1.1 through 1.16 of this part). § 1.190 Documentation of fees and ex penses. (a) The application shall be accompanied by full documentation of the fees and expenses, including the cost of any study, analysis, engineering report, test, project or similar matter, for which an award is sought. (b) The documentation shall include an affidavit from any attorney, agent, or expert witness representing or ap pearing 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 performed. (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 time periods. (2) If no 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 Judge may require the applicant to provide vouchers, receipts, or other substantiation for any expenses claimed. § 1.191 Time for filing application. (a) An application must be filed no later than 30 days after the Department's final disposition of the proceeding. (b) If review or reconsideration is sought or taken of a decision as to which an applicant believes it has prevailed, proceedings for the award of fees shall be stayed pending final disposition of the underlying controversy. (c) For the purposes of this subpart, final disposition means the later of (1) the date on which an initial decision of the Judge becomes final as set out in § 1.142(c) of this part; (2) issuance of an order disposing of any petition to rehear or reargue the proceeding or to reconsider an order of the Judicial Officer issued pursuant to § 1.145(i) of this part; (3) if no such petition to rehear, reargue or reconsider is filed, the last date on which such a petition could have been filed as set out in § 1.146 of this párt; or (4) issuance of a consent decision as set out in § 1.138 of this part. PROCEDURES FOR CONSIDERING § 1.192 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 except as provided in § 1.189 for confidential financial information. The provisions relating to filing, service, extensions of time, and computation of time contained in § 1.147 of this part are incorporated into and made applicable to this subpart except that the statutory 30 day time limit on filing the application as set out in § 1.191 may not be extended. § 1.193 Answer to application. (a) Within 30 days after service of an application, agency counsel may file an answer. If agency counsel fails to timely answer or settle the application, the Judge, upon a satisfactory showing of entitlement by the applicant, may make an award for the applicant's allowable fees and expenses. (b) If agency counsel and the applicant believe that the issues in the fee application can be settled, agency counsel may file a statement of 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 by agency counsel. (c) The answer shall explain in detail any objections to the award requested and identify the facts relied on in support of agency counsel's posi tion. If the answer is based on any alleged facts not already in the record of the proceeding, agency counsel shall include with the answer either sup porting affidavits or a request for further proceedings under § 1.197. § 1.194 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 |