Page images

Educational Museum means a museum that conducts courses on a continuing, not ad hoc, basis for students who receive credits from accredited postsecondary education institutions or school systems.

School Outdoor Education means a separate facility for outdoor education as distinguished from components of a basic school. Components of a school such as playgrounds and athletic fields receive the basic allowance applicable for that type of school. The outdoor education must be located reasonably near the school system and may be open to and used by the general public, but only if the educational program for which the property is conveyed is given priority of use. This category does not include components of the school such as playgrounds and athletic fields, that are utilized during the normal school year, and are available to all students.

Central Administrative and/or Service Center means administrative office space, equipment storage areas, and similar facilities.

disaster, or condemnation. This allowance is also earned if unusual conditions exist such as isolation or economic factors that require special consideration.

Inadequacies of Existing Facilities means an allowance that is earned on a percentage basis depending on the degree of inadequacy considering both public and nonpublic facilities. Overall plant requirements are determined based on the relationship between the maximum enrollment accommodated in the present facilities, excluding double and night sessions and the anticipated enrollment if the facilities are transferred. Inadequacies may be computed for a component school unit such as a school farm, athletic field, facility for home economics, round-out school site, cafeteria, auditorium, teacherages, faculty housing, etc., only if the component is required to meet State standards. In that event, the State Department of Education will be required to provide a certification of the need. Component school unit inadequacies may only be related to a particular school and not to the entire school system.

DESCRIPTION OF ALLOWANCES Basic Public Benefit Allowance means an allowance that is earned by an applicant that satisfies the requirements of $ 12.10 of this part.

ORGANIZATION ALLOWANCE Accreditation means an allowance that is earned by any postsecondary educational institution, including a vocational or trade school, that is accredited by an accrediting agency recognized by the Secretary under 34 CFR part 602.

Federal Impact means an allowance that is earned by any local educational agency (LEA) qualifying for Federal financial assistance as the result of the impact of certain Federal activities upon a community, such as the following under Public Law 81-874 and Public Law 81-815: to any LEA charged by law with responsibility for education of children who reside on, or whose parents are employed on, Federal property, or both; to any LEA to which the Federal Government has caused a substantial and continuing financial burden as the result of the acquisition of a certain amount of Federal property since 1938; or to any LEA that urgently needs minimum school facilities due to a substantial increase in school membership as the result of new or increased Federal activities.

Public Services Training means an allowance that is earned if the applicant has cadet or ROTC units or other personnel training contracts for the Federal or State governments. This is given to a school system only if the particular school receiving the property furnishes that training.

Hardship means an allowance earned by an applicant that has suffered a significant facility loss because of fire, storm, flood, other

UTILIZATION ALLOWANCES Introduction of New Instructional Programs means an allowance that is earned if the proposed use of the property indicates that new programs will be added at a particular school. Examples of these new programs include those for vocational education, physical education, libraries, and similar programs.

Student Health and Welfare means an allowance that is earned if the proposed program and plan of use of the property provides for cafeteria, clinic, infirmary, bus loading shelters, or other uses providing for the wellbeing and health of students and eliminating safety and health hazards.

Research means an allowance that is earned if the proposed use of the property will be predominantly for research by faculty or graduate students under school auspices, or other primary educational research.

Service to Handicapped means an allowance that is earned if the proposed program and plan of use for the property will be for special education for the physically or mentally handicapped.



AUTHORITY: Section 213, Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1894 (42 U.S.C. 4601) as amended by the

Surface Transportation and Uniform Reloca 21.51 Initial decision in applications not tion Assistance Act of 1987, Title IV of Pub. subject to the CRRA. L. 100-17, 101 Stat. 246-256 (42 U.S.C. 4601 21.52 Initial decision by an adjudicative ofnote).

ficer in applications subject to CRRA ju

risdiction. $ 15.1 Uniform relocation assistance 21.53 Final decision of the CRRA. and real property acquisition.

21.54 Review by the Secretary. Regulations and procedures for com 21.55 Final decision if the Secretary does plying with the Uniform Relocation not review. Assistance Act of 1970 (Pub. L. 91-646,

21.56 Judicial review. 84 Stat. 1894, 42 U.S.C. 4601) as amended by the Surface Transportation and

Subpart G-How Are Awards Paid? Uniform Relocation Assistance Act of 21.60 Payment of awards. 1987 (Title IV of Pub. L. 100–17, 101 Stat. 21.61 Release. 264-255, 42 U.S.C. 4601 note) are set forth

AUTHORITY: 5 U.S.C. 504, unless otherwise in 49 CFR part 24.

noted. (52 FR 48021, Dec. 17, 1987)

SOURCE: 58 FR 47192, Sept. 7, 1993, unless

otherwise noted.

Subpart A-General
Subpart A-General

821.1 Equal Access to Justice Act. Sec.

(a) The Equal Access to Justice Act 21.1 Equal Access to Justice Act.

(the Act) provides for the award of fees 21.2 Time period when the Act applies. and other expenses to applicants that 21.3 Definitions.

(1) Are prevailing parties in adverSubpart B-Which Adversary Adjudications

sary adjudications before the Depart

ment of Education; and Are Covered?

(2) Meet all other conditions of eligi21.10 Adversary adjudications covered by bility contained in this part. the Act.

(b) An eligible applicant, as described 21.11 Effect of judicial review of adversary in paragraph (a) of this section, is entiadjudication.

tled to receive an award unlessSubpart C-How Is Eligibility Determined?

(1) The adjudicative officer, the Civil

Rights Reviewing Authority (CRRA), 21.20 Types of eligible applicants.

or the Secretary on review, determines 21.21 Determination of net worth and num thatber of employees.

(i) The Department's position was 21.22 Applicants representing others.

substantially justified; or Subpart D—How Does One Apply for an

(ii) Special circumstances make an Award?

award unjust; or

(2) The adversary adjudication is 21.30 Time for filing application.

under judicial review, in which case the 21.31 Contents of application.

applicant may receive an award only as 21.32 Confidentiality of information about

described in $21.11. net worth. 21.33 Allowable fees and expenses.

(c) The determination under para

graph (b)(1)(i) of this section is based Subpart E-What Procedures Are Used in on the administrative record, as a Considering Applications?

whole, made during the adversary adju

dication for which fees and other ex21.40 Filing and service of documents.

penses are sought. 21.41 Answer to application. 21.42 Reply.

(Authority: 5 U.S.C. 504(a)(1) and (c)(1) 21.43 Comments by other parties. 21.44 Further proceedings.

$21.2 Time period when the Act ap

plies. Subpart F-How Are Awards Determined?

The Act applies to any adversary ad21.50 Standards for awards.

judication covered under this part

pending or commenced before the Department on or after August 5, 1985. (Authority: 5 U.S.C. 504(note))

$21.3 Definitions.

The following definitions apply to this part:

Act means the Equal Access to Justice Act.

Adjudicative officer means the Administrative Law Judge, hearing examiner, or other deciding official who presided at the underlying adversary adjudication. (Authority: 5 U.S.C. 504(b)(1)(D))

Adversary adjudication means a proceeding

(1) Conducted by the Department for the formulation of an order or decision arising from a hearing on the record under the Administrative Procedure Act (5 U.S.C. 554);

(2) Listed in 821.10; and

(3) In which the position of the Department was represented by counsel or other representative who entered an appearance and participated in the proceeding. (Authority: 5 U.S.C. 504(b)(1)(C))

Application subject to the jurisdiction of the CRRA means an application for fees and expenses based on an underlying proceeding conducted under 34 CFR parts 100, 101, 104, 106, or 110. (Authority: 5 U.S.C. 504(b)(1)(C); 20 U.S.C. 1681; 29 U.S.C. 794; 42 U.S.C. 2000d-1 et seq. and 6101 et seq.)

CRRA means the Civil Rights Reviewing Authority, the reviewing authority established by the Secretary to consider applications under 34 CFR parts 100, 101, 104, 106, and 110. (Authority: 5 U.S.C. 504(b)(1)(C); 20 U.S.C. 1681; 29 U.S.C. 794; 42 U.S.C. 2000d-1 et seq. and 6101 et seq.)

Department means the U.S. Department of Education.

Department's counsel means counsel for the Department of Education or another Federal agency.

Employee means:

(1) A person who regularly performs services for an applicant

(i) For remuneration; and

(ii) Under the applicant's direction and control.

(2) A part-time or seasonal employee who performs services for an applicant

(i) For renumeration; and

(ii) Under the applicant's direction and control. (Authority: 5 U.S.C. 504(c)(1))

Fees and other expenses means an eligible applicant's reasonable fees and expenses

(1) Related to the issues on which it was the prevailing party in the adversary adjudication; and

(2) Further described in $821.33 and 21.50. (Authority: 5 U.S.C. 504 (a)(1), (b)(1)(A), and (c)(1))

Party means a "person" or a "party" as those terms are defined in the Administrative Procedure Act (5 U.S.C. 551(3)), including an individual, partnership, corporation, association, unit of local government, or public or private organization that meets the requirements in 821.20. The term does not include an agency of the Federal Government. (Authority: 5 U.S.C. 504(b)(1)(B))

Position of the Department means, in addition to the position taken by the Department in the adversary adjudication, the action or failure to act by the Department upon which the adversary adjudication is based. (Authority: 5 U.S.C. 504 (a)(1) and (b)(1)(E))

Secretary means the Secretary of the U.S. Department of Education or an official or employee of the Department acting for the Secretary under a delegation of authority. (Authority: 5 U.S.C. 504 (b)(2) and (c)(1))

Subpart B-Which Adversary Adjudications Are Covered?

$21.10 Adversary adjudications COV

ered by the Act. The Act covers adversary adjudications under section 554 of title 5 of the United States Code. These include the following:

(a) Compliance proceedings under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).



(b) Compliance and enforcement pro (1) A net worth of not more than $7 ceedings under the Age Discrimination million, including both personal and Act of 1975 (42 U.S.C. 6101 et seq.).

business interests; and (c) Compliance proceedings under (2) Not more than 500 employees. title IX of the Education Amendments (c) A charitable or other tax-exempt of 1972 (20 U.S.C. 1681 et seq.).

organization, (d) Compliance proceedings under (1) As described in section 501(c)(3) of section 504 of the Rehabilitation Act of the Internal Revenue Code of 1954 (26 1973 (29 U.S.C. 794).

U.S.C. 501(C)(3)); and (e) Withholding proceedings under (2) Having not more than 500 employsection 1001 of Pub. L. 100-297 (Hawkins-Stafford) (20 U.S.C. 2833).

(d) A cooperative association(f) Proceedings under any of the fol (1) As defined in section 15(a) of the lowing:

Agricultural Marketing Act (12 U.S.C. (1) Section 5(g) of Pub. L. 81-874 (Fi 1141(a)); and nancial Assistance for Local Edu (2) Having not more than 500 employcational Agencies in Areas Affected by Federal Activity) (20 U.S.C. 240(g)).

(e) Any other partnership, corpora(2) Sections 6(c) or 11(a) of Pub. L. 81 tion, association, unit of local govern815 (an act relating to the construction ment, or organization that has of school facilities in areas affected by (1) A net worth of not more than $7 Federal activities and for other pur million; and poses) (20 U.S.C. 636(c) or 641(a)).

(2) Not more than 500 employees. (3) Section 6 of Pub. L. 95–563 (Con

(Authority: 5 U.S.C. 504(b)(1)(B)) tract Disputes Act of 1978) (41 U.S.C. 605).

$21.21 Determination of net worth and (4) Part E of the General Education number of employees. Provisions Act (20 U.S.C. 1234 et seq.).

(a) The adjudicative officer shall de(g) Other adversary adjudications

termine an applicant's net worth and that fall within the coverage of the

number of employees as of the date the Act.

adversary adjudication was initiated. (Authority: 5 U.S.C. 504(c) and 554; 20 U.S.C. (b) In determining eligibility, the ad1234(1)(2))

judicative officer shall include the net

worth and number of employees of the $21.11 Effect of judicial review of ad applicant and all of the affiliates of the versary adjudication.

applicant. If a court reviews the underlying de (c) For the purposes of paragraph (b) cision of an adversary adjudication of this section, the adjudicative officer covered under this part, an award of shall consider the following as an affilfees and other expenses may be made iate: only under 28 U.S.C. 2412 (awards in (1) Any individual, corporation, or certain judicial proceedings).

other entity that directly or indirectly (Authority: 5 U.S.C. 504(c)(1); 28 U.S.C.

owns or controls a majority of the vot

ing shares or other interest of the ap2412(d)(3))

plicant; Subpart C-How Is Eligibility

(2) Any corporation or other entity of Determined?

which the applicant directly or indirectly owns or controls a majority of

the voting shares or other interest; and $21.20 Types of eligible applicants.

(3) Any entity with a financial relaThe following types of parties that tionship to the applicant that, in the prevail in adversary adjudications are determination of the adjudicative offieligible to apply under the Act for an cer, constitutes an affiliation for the award of fees and other expenses: purposes of paragraph (b) of this sec

(a) An individual who has a net worth tion. of not more than $2 million.

(d) In determining the number of em(b) Any owner of an unincorporated ployees of an applicant and its affilibusiness who has

ates, the adjudicative officer shall

count part-time employees on a propor 821.31 Contents of application. tional basis.

(a) In its application for an award of (Authority: 5 U.S.C. 504(c)(1))

fees and other expenses, an applicant

shall include the following: $21.22 Applicants representing others.

(1) Information adequate to show If an applicant is a party in an adver that the applicant is a prevailing party sary adjudication primarily on behalf in an adversary adjudication or in a of one or more persons or entities that significant and discrete substantive are ineligible under this part, then the portion of an adversary adjudication. applicant is not eligible for an award. (2) A statement that the adversary

adjudication is covered by the Act ac(Authority: 5 U.S.C. 504 (b)(1)(B) and (c)(1))

cording to $21.10.

(3) An allegation that the position of Subpart D—How Does One Apply

the Department was not substantially for an Award?

justified, including a description of the $21.30 Time for filing application.

specific position.

(4) Unless the applicant is a qualified (a) In order to be considered for an tax-exempt organization or a qualified award under this part, an applicant agricultural cooperative association, may file its application when it pre- information adequate to show that the vails in an adversary adjudication-or applicant qualifies under the requirein a significant and discrete sub ments of $8 21.20 and 21.21 regarding net stantive portion of an adversary adju worth. The information, if applicable, dication-but no later than 30 days shall include a detailed exhibit of the after the Department's final disposi- net worth of the applicant-and its aftion of the adversary adjudication. filiates as described in $21.21-as of the

(b) In the case of a review or recon date the proceeding was initiated. sideration of a decision in which an ap (5)(i) The total amount of fees and explicant has prevailed or believes it has penses sought in the award; and prevailed, the adjudicative officer shall (ii) An itemized statement of stay the proceedings on the application (A) Each expense; and pending final disposition of the under (B) Each fee, including the actual lying issue.

time expended for this fee and the rate (c) For purposes of this part, final at which the fee was computed. disposition of the adversary adjudica (6) A written verification under oath tion means the latest of

or affirmation or under penalty of per(1) The date on which an initial deci

jury from each attorney representing sion or other recommended disposition the applicant statingof the merits of the proceeding by an

(i) The rate at which the fee subadjudicative officer becomes adminis- mitted by the attorney was computed; tratively final;

and (2) The date of an order disposing of (ii) The actual time expended for the any petitions for reconsideration of the fee. final order in the adversary adjudica (7) A written verification under oath, tion;

affirmation, or under penalty of per(3) If no petition for reconsideration jury that the information contained in is filed, the last date on which that

the application and any accompanying type of petition could have been filed;

material is true and complete to the or

best of the applicant's information and (4) The date of a final order or any belief. other final resolution of a proceeding (b) The adjudicative officer may resuch as a settlement or voluntary dis- quire the applicant to submit addimissal-that is not subject to a peti- tional information. tion for reconsideration.

(Authority: 5 U.S.C. 504 (a)(2) and (c)(1)) (Authority: 5 U.S.C. 504 (a)(2) and (c)(1))

« PreviousContinue »