Sec.  1.1505   Standards for awards.

   (a) A prevailing party may receive an award for fees and expenses incurred
   in connection either with an adversary adjudication, or with a significant
   and discrete substantive portion of an adversary adjudication in which the
   party has prevailed over the position of the Commission.

   (1) The position of the Commission includes, in addition to the position
   taken by the Commission in the adversary adjudication, the action or failure
   to act by the agency upon which the adversary adjudication is based.

   (2) An award will be reduced or denied if the Commission's position was
   substantially justified in law and fact, if special circumstances make an
   award unjust, or if the prevailing party unduly or unreasonably protracted
   the adversary adjudication.

   (b) If, in an adversary adjudication arising from a Commission action to
   enforce a party's compliance with a statutory or regulatory requirement, the
   demand of the Commission is substantially in excess of the decision in the
   adversary adjudication and is unreasonable when compared with that decision,
   under the facts and circumstances of the case, the party shall be awarded
   the fees and other expenses related to defending against the excessive
   demand, unless the party has committed a willful violation of law or
   otherwise acted in bad faith, or special circumstances make an award unjust.
   The “demand” of the Commission means the express demand which led to the
   adversary adjudication, but it does not include a recitation by the
   Commission of the maximum statutory penalty in the administrative complaint,
   or elsewhere when accompanied by an express demand for a lesser amount.

   (c) The burden of proof that an award should not be made is on the
   appropriate Bureau (see  Sec. 1.21) whose representative shall be called “Bureau
   counsel” in this subpart K.

   [ 61 FR 39899 , July 31, 1996]