The determination of an award shall be made on the basis of the record
made during the proceeding for which fees and expenses are sought, except as
provided in paragraphs (a)(2) and (a)(3) of this section.
On the motion of a party or on the judge's own initiative, the judge may
order further proceedings, including discovery and an evidentiary hearing, as
to issues other than substantial justification (such as the applicant's eligibility
or substantiation of fees and expenses).
If the proceeding for which fees and expenses are sought ended before the
Secretary had an opportunity to introduce evidence supporting the citation or
notification of proposed penalty (for example, a citation was withdrawn or
settled before an evidentiary hearing was held), the Secretary may supplement
the record with affidavits or other documentary evidence of substantial
A request that the judge order further proceedings under this section shall
specifically identify the information sought or the disputed issues and shall
explain why the additional proceedings are necessary to resolve the issues.
[46 FR 48080, Sept. 30, 1981, as amended at 52 FR 5457, Feb. 23, 1987]