Treasury Department as to the currencies to be accepted and the conditions of payment unless payment is made as a credit to the price or cost of work under the contract.

§ 133.19 Inconsistent regulations.

Regulations heretofore applicable to the disposal of surplus property located in foreign areas as defined in § 308.1 are hereby superseded for

those areas.

§ 133.20 Persons acting under delegated authority.

Any reference in this part to the Office of the Foreign Liquidation Commissioner shall be deemed to include any person acting under delegated authority of the Foreign Liquidation Commissioner or under any redelegation of such authority.

§ 133.52 Forms for declaration of surplus. (a) Owning agencies shall declare surplus personal and real property located outside of the continental United States, its Territories and possessions to the appropriate disposal agencies designated in § 308.3 on Form SPA-3, Declaration of Surplus Property to Disposal Agency (Outside Continental United States, Its Territories and Possessions), as attached hereto, in accordance with the instructions accompanying such form. Corrections or withdrawals of prior declarations shall be submitted to the appropriate disposal agency on Form SPA-3.1, Correction of Declaration of Surplus Property (Outside Continental United States, Its Territories and Possessions) in accordance with the instructions accompanying such form. Owning agencies may substitute for Form SPA-3 any internal report: Provided, That a Form SPA-3 be used as a cover sheet: And provided further, That all information required by Form SPA-3 except the Standard Commodity Code be shown either on the Form SPA-3 or on the supporting document.

1

(b) Forms SPA-3 and SPA-3.1 may be reproduced by the owning agencies on sheets 8"x101⁄2": Provided, That the formats are identical with those

'Form filed as part of the original document.

on file with the Office of the Federal Register, sample copies of which may be obtained from the Administrator. Forms SPA-3 and SPA-3.1 should allow for a 1" margin on the left. Form SPA-3.1 should be reproduced on yellow paper so as to distinguish it readily from Form SPA-3.

(c) Owning agencies may consolidate into a single line entry without condition coding any number of items: Provided, That the total cost of any single item included in the line entry does not exceed $1,000. The term "item" as used herein means one or any number of identical articles.

[SPA Reg. 8, Order 2, 11 FR 353, Jan. 8, 1946]

§ 133.54 Approval of delegation of disposal authority to War Stores Disposal Board of Union of South Africa.

(a) The Surplus Property Administrator hereby approves of the delegation by the Department of State of its authority as disposal agency for surplus property located in the Union of South Africa to War Stores Disposal Board of the Union of South Africa: Provided, That such delegation shall contain provisions to the effect that the Department of State may withdraw such items as it may from time to time designate and may reclaim any property prior to final disposition; that all proposed sales will be submitted to the State Department for prior approval or veto as to price, purchaser and conditions; that disposal will be made subject to such conditions as will prevent re-export to the United States; that gross proceeds will be paid promptly to the State Department; and that disposal of United States surplus property will be made with the same care and favor accorded to surplus property of other origins.

(b) Copies of all instruments delegating disposal authority pursuant to this section shall be filed promptly with the Administrator.

(c) The State Department shall prepare and maintain such records as will show full compliance with the provisions of this part and with the applicable provisions of the Act. All reports required to be filed by disposal agencies with the Surplus Property Admin

istrator relating to surplus property covered by this section shall be filed by the Department of State.

[SPA Reg. 8, Order 4, 11 FR 353, Jan. 8, 1946]

§ 133.56 Importations into United States of surplus property located in foreign

areas.

(a) Section 308.15 of FLC Regulation 8 shall not apply to prevent the importation of surplus property specified in paragraphs numbered (1) through (3) of Schedule A of this section, if such property is in transit to a point in the United States on or before June 30, 1949.

(b) Section 308.15 shall not apply to prevent the importation of surplus property specified in paragraphs numbered (4) and (5) of Schedule A of this section, except as to such items as may be deleted therefrom by subsequent amendment of this section, if such property is in transit to a point in the United States on or before June 30, 1949. Any amendment which may be issued for the purpose of deleting items from paragraphs numbered (4) and (5) of Schedule A shall not be effective until thirty (30) days after publication. For the purpose of this section "in transit to a point in the United States" shall mean the property involved has been delivered to or accepted by a carrier which has issued a through bill of lading thereon to a point in the United States.

SCHEDULE A

(1) Burlap bags and strips.

(2) Containers: steel, shipping barrels, drums, and pails.

(3) Telephone and telegraph equipment, including but not limited to lead covered cable; line, messenger and drop wire; pole line hardware; outside plant communication equipment; central office equipment, including switchboard positions; and miscellaneous telephone apparatus.

(4) Tire chains and parts.

(5) All items of machinery, equipment, and parts therefor in Schedule B, Statistical Classification of Domestic and Foreign Commodities exported from the United States, Part II, January 1, 1949, Edition,

2Copies of Schedule B, Statistical Classification of Domestic And Foreign Commodities Exported from the United States, Part

Nos. 600700 through 610800 (steel mill products); Nos. 700000 through 788905, inclusive, with the following exceptions: Nos. 720110 and 720115 (only as to excavators and cranes of 1 cubic yard and under bucket or dipper capacity, other sizes importable), 721500 (concrete mixers), 722610 and 722620 (scrapers, self-loading), 725000 through 725050 (industrial trucks), 740005 through 745898 (machine tools and other metalworking machinery), 770400 through 770615 (air compressors) and 774300 through 774350 (scales and balances, except laboratory).

Subpart A-General Provisions

§ 134.1 Purpose of these rules.

The Equal Access to Justice Act, 5 U.S.C. 504 (called "the Act" in this part), 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 State. An eligible party may receive an award when it prevails over the Department of State, unless the Department of State's position in the proceeding was substantially justified or special circumstances make an award unjust. The rules in this part describe the parties eligible for awards and the proceedings that are covered. They also explain how to apply for awards, and the procedures and standards that the Department will observe to make them.

§ 134.2 When the Act applies.

The Act applies to any adversary adjudication pending before the Department of State at any time between October 1, 1981 and September 30, 1984. This includes proceedings begun before October 1, 1981 if final agency action has not been taken before that date, and proceedings pending on September 30, 1984, regardless of when they were initiated or when final agency action occurs.

§ 134.3 Proceedings covered.

(a) The Act applies to adversary adjudications conducted by the Department of State. These are adjudications under 5 U.S.C. 554 in which the position of the Department of State is presented by an attorney or other representative who enters an appearance and participates in the proceeding. For the Department of State, the type of proceeding covered are proceedings

relative to controlling export of defense articles through administrative sanctions pursuant to 22 U.S.C. 2778 and 50 U.S.C. App. 2410 (c)(2)(B).

(b) The Department of State may also designate a proceeding not listed in paragraph (a) of this section as an adversary adjudication for purposes of the Act by so stating in an order initiating the proceeding or designating the matter for hearing. The failure to designate a proceeding as an adversary adjudication shall not preclude the filing of an application by a party who believes the proceeding is covered by the Act; whether the proceeding is covered will then be an issue for resolution in proceedings on the application.

(c) If a proceeding includes matters covered by the Act and matters specifically excluded from coverage, any award made will include only fees and expenses related to covered issues.

§ 134.4 Eligibility of applicants.

(a) To be eligible for an award of attorney fees and other expenses under the Act, the applicant must be a 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 by clear and convincing evidence that it meets all conditions of eligibility set out in this subpart and in Subpart B and must submit additional information to verify its eligibility upon order by the adjudicative officer.

(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, corporation 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 part, unless the adjudicative officer determines that 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 adjudicative officer 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.

§ 134.5 Standard for awards.

(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 Department of State 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.

§ 134.6 Allowable fees and expenses.

(a) Awards will be based on rates customarily charged by persons engaged in the business of acting as attorneys, agents and expert witnesses, even if the services were made available without charge or at a reduced rate to the applicant.

(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 the Department of State pays expert witnesses, which is generally $50.00 per hour. However, an award may also include the reasonable 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 adjudicative officer 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 applicant's case.

§ 134.7 Rulemaking on maximum rates for attorney fees.

(a) If warranted by an increase in the cost of living or by special circumstances (such as limited availability of attorneys qualified to handle certain types of proceedings), the Department of State may adopt regulations providing that attorney fees may be awarded at a rate higher than $75 per hour in some or all of the types of proceedings covered by this part. The Department of State will conduct any rulemaking proceedings for this purpose under the informal rulemaking procedures of the Administrative Procedure Act.

(b) Any person may request the Department of State to initiate a rulemaking proceeding to increase the maximum rate for attorney fees. The request should identify the rate the person believes the Department of State should establish and the types of proceedings in which the rate should be used. It should also explain fully the reasons why the higher rate is warranted. The Department of State will respond to the request within 60 days after it is filed, by determining to initiate a rulemaking proceeding, denying the request, or taking other appropriate action.

§ 134.8 Official authorized to take final action under the Act.

The Department of State official who renders the final agency decision in a covered proceeding is authorized to take final action on matters pertaining to the Equal Access to Justice Act as applied to the proceeding.

ceeding for which an award is sought. The application shall show that the applicant has prevailed and identify the position of the Department of State in the proceeding that the applicant alleges was not substantially justified. 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 qualfies under such section; or

(2) It states on the application 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 the Department of State 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 also contain or be accompanied by a written verification under oath or under penalty of prejury that the information provided in the application is true and correct.

§ 134.12 Net worth exhibit.

(a) Each applicant except a qualifed tax-exempt organization or cooperative association must provide with its application a detailed exhibit showing