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fidential" under the terms of EO 12356 will be delivered immediately upon receipt to the Assistant Inspector General for Investigation or designees.

(b) The Assistant Inspector General for Investigation or designees informs departmental recipients of classified data of current designees and alternate offices to which the data referred to in paragraph (a) of this section is to be delivered.

(c) Access to classified material is restricted to those individuals with an authorized security clearance and a need to know.

[46 FR 48927, Oct. 5, 1981, as amended at 50 FR 28102, July 10, 1985]

§ 19.12 Reproduction controls.

(a) Reproduction of classified material within the Department of Education must be in compliance with Executive Order 12356, Section 4-1.

(b) If copies of data are reproduced, the same controls imposed on the original document will apply to the reproductions.

(c) The Assistant Inspector General for Investigation or designees will maintain:

(1) Records showing the number and distribution of copies; and

(2) A log stored with the original documents.

[46 FR 48927, Oct. 5, 1981, as amended at 50 FR 28102, July 10, 1985]

§19.13 Storage.

(a) All classified documents must be stored in security containers approved by the General Services Administration and located in the Office of Inspector General's security office or other approved area.

(b) If access to the security container is controlled by a combination lock:

(1) The combination must be changed as required by the June 25, 1982 Information Security Oversight Office's (ISOO) Directive No. 1, Section 2001.43.

(2) Only the Assistant Inspector General for Investigation or designees who hold proper security clearances shall know the combination; and

(3) The combination must be afforded the same classification as the material stored within the security container.

[46 FR 48927, Oct. 5, 1981, as amended at 50 FR 28102, July 10, 1985]

§ 19.14 Mandatory review for declas

sification.

(a) Requests. Request for mandatory review of national security information must be in writing and addressed to the Assistant Inspector General for Investigation, Office of Inspector General, U.S. Department of Education, L'Enfant Plaza Station, P.O. Box 23458, Washington, DC 20026.

(b) Mandatory review. Information is subject to mandatory review by the originating agency if:

(1) The request is made by a U.S. citizen or permanent resident alien, a Federal agency, or a State or local government; and

(2) The request describes the document or material containing the information with sufficient specificity to enable the Department to locate it with a reasonable amount of effort.

(c) Exemptions from mandatory review. Information originated by a President, the White House staff, by committees, commissions, or boards appointed by the President, or others specifically providing advice and counsel to a President or acting on behalf of a President, is exempted from mandatory review for declassification.

(d) Processing requirements. The Department of Education does not have original classification authority. Any classified information or materials in its custody are classified by another agency. The Department refers copies of the request and the requested documents to the originating agency for processing, and may, after consultation with the originating agency, inform the requester of the referral.

(e) Fees. The Department may charge fees for search and review time required to process the request and for reproduction costs. These fees charged in accordance with 31 U.S.C. 483a.

[50 FR 28102, July 10, 1985]

are

§ 19.15 Employee education.

(a) The employee education program concerning document security must be provided to every Department of Education employee who has or may require access to classified material in the performance of his or her duties and who possesses the appropriate security clearance.

(b) Each employee having an access clearance is briefed by the Assistant Inspector General for Investigation or designees concerning personal responsibilities for classified material under EO 12356 and appropriate ISOO directives.

(c) Each employee who receives a briefing shall sign a statement to certify that the briefing was accomplished.

[46 FR 48927, Oct. 5, 1981, as amended at 50 FR 28102, July 10, 1985]

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§ 21.1 Equal Access to Justice Act.

(a) The Equal Access to Justice Act (the Act) provides for the award of fees and other expenses to applicants that

(1) Are prevailing parties in adversary adjudications before the Department of Education; and

(2) Meet all other conditions of eligibility contained in this part.

(b) An eligible applicant, as described in paragraph (a) of this section, is entitled to receive an award unless

(1) The adjudicative officer, the Civil Rights Reviewing Authority (CRRA), or the Secretary on review, determines that

(i) The Department's position was substantially justified; or

(ii) Special circumstances make an award unjust; or

(2) The adversary adjudication is under judicial review, in which case the applicant may receive an award only as described in §21.11.

(c) The determination under paragraph (b)(1)(i) of this section is based on the administrative record, as a whole, made during the adversary adjudication for which fees and other expenses are sought.

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

$21.2 Time period when the Act applies.

The Act applies to any adversary adjudication 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 § 21.10; 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 §§ 21.33 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 § 21.20. 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 covered 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 proceedings under the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.).

(c) Compliance proceedings under Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.).

(d) Compliance proceedings under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794).

(e) Withholding proceedings under section 1001 of Pub. L. 100-297 (Hawkins-Stafford) (20 U.S.C. 2833).

(f) Proceedings under any of the following:

(1) Section 5(g) of Pub. L. 81-874 (Financial Assistance for Local Educational Agencies in Areas Affected by Federal Activity) (20 U.S.C. 240(g)).

(2) Sections 6(c) or 11(a) of Pub. L. 81815 (an act relating to the construction of school facilities in areas affected by Federal activities and for other purposes) (20 U.S.C. 636(c) or 641(a)).

(3) Section 6 of Pub. L. 95-563 (Contract Disputes Act of 1978) (41 U.S.C. 605).

(4) Part E of the General Education Provisions Act (20 U.S.C. 1234 et seq.).

(g) Other adversary adjudications that fall within the coverage of the Act.

(Authority: 5 U.S.C. 504(c) and 554; 20 U.S.C. 1234(f)(2))

821.11 Effect of judicial review of adversary adjudication.

If a court reviews the underlying decision of an adversary adjudication covered under this part, an award of fees and other expenses may be made only under 28 U.S.C. 2412 (awards in certain judicial proceedings).

(Authority: 5 U.S.C. 504(c)(1); 28 U.S.C. 2412(d)(3))

Subpart C-How Is Eligibility Determined?

$21.20 Types of eligible applicants.

The following types of parties that prevail in adversary adjudications are eligible to apply under the Act for an award of fees and other expenses:

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

(b) Any owner of an unincorporated business who has

(1) A net worth of not more than $7 million, including both personal and business interests; and

(2) Not more than 500 employees. (c) A charitable or other tax-exempt organization

(1) As described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)); and

(2) Having not more than 500 employ

ees.

(d) A cooperative association

(1) As defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141(a)); and

(2) Having not more than 500 employ

ees.

(e) Any other partnership, corporation, association, unit of local government, or organization that has

(1) A net worth of not more than $7 million; and

(2) Not more than 500 employees. (Authority: 5 U.S.C. 504(b)(1)(B))

$21.21 Determination of net worth and number of employees.

(a) The adjudicative officer shall determine an applicant's net worth and number of employees as of the date the adversary adjudication was initiated.

(b) In determining eligibility, the adjudicative officer shall include the net worth and number of employees of the applicant and all of the affiliates of the applicant.

(c) For the purposes of paragraph (b) of this section, the adjudicative officer shall consider the following as an affiliate:

(1) Any individual, corporation, or other entity that directly or indirectly owns or controls a majority of the voting shares or other interest of the applicant;

(2) Any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest; and (3) Any entity with a financial relationship to the applicant that, in the determination of the adjudicative officer, constitutes an affiliation for the purposes of paragraph (b) of this section.

(d) In determining the number of employees of an applicant and its affiliates, the adjudicative officer shall count part-time employees on a proportional basis.

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

$21.22 Applicants representing others. If an applicant is a party in an adversary adjudication primarily on behalf of one or more persons or entities that are ineligible under this part, then the applicant is not eligible for an award. (Authority: 5 U.S.C. 504 (b)(1)(B) and (c)(1))

Subpart D-How Does One Apply for an Award?

$21.30 Time for filing application.

(a) In order to be considered for an award under this part, an applicant may file its application when it prevails in an adversary adjudication—or in a significant and discrete substantive portion of an adversary adjudication-but no later than 30 days after the Department's final disposition of the adversary adjudication.

(b) In the case of a review or reconsideration of a decision in which an applicant has prevailed or believes it has prevailed, the adjudicative officer shall stay the proceedings on the application pending final disposition of the underlying issue.

(c) For purposes of this part, final disposition of the adversary adjudication means the latest of

(1) The date on which an initial decision or other recommended disposition of the merits of the proceeding by an adjudicative officer becomes administratively final;

(2) The date of an order disposing of any petitions for reconsideration of the final order in the adversary adjudication;

(3) If no petition for reconsideration is filed, the last date on which that type of petition could have been filed;

or

(4) The date of a final order or any other final resolution of a proceedingsuch as a settlement or voluntary dismissal-that is not subject to a petition for reconsideration.

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

$21.31 Contents of application.

(a) In its application for an award of fees and other expenses, an applicant shall include the following:

(1) Information adequate to show that the applicant is a prevailing party in an adversary adjudication or in a significant and discrete substantive portion of an adversary adjudication.

(2) A statement that the adversary adjudication is covered by the Act according to § 21.10.

(3) An allegation that the position of the Department was not substantially justified, including a description of the specific position.

(4) Unless the applicant is a qualified tax-exempt organization or a qualified agricultural cooperative association, information adequate to show that the applicant qualifies under the requirements of §§ 21.20 and 21.21 regarding net worth. The information, if applicable, shall include a detailed exhibit of the net worth of the applicant-and its affiliates as described in §21.21—as of the date the proceeding was initiated.

(5)(i) The total amount of fees and expenses sought in the award; and

(ii) An itemized statement of(A) Each expense; and

(B) Each fee, including the actual time expended for this fee and the rate at which the fee was computed.

(6) A written verification under oath or affirmation or under penalty of perjury from each attorney representing the applicant stating

(i) The rate at which the fee submitted by the attorney was computed; and (ii) The actual time expended for the fee.

(7) A written verification under oath, affirmation, or under penalty of perjury that the information contained in the application and any accompanying material is true and complete to the best of the applicant's information and belief.

(b) The adjudicative officer may require the applicant to submit additional information.

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

§ 21.32 Confidentiality of information about net worth.

(a) In a proceeding on an application, the public record ordinarily includes

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