Chena Hot Springs Resort, LLC, 4481 (March 21, 2002)
Docket No. SIZ-2002-03-05-11

                               
                   UNITED STATES OF AMERICA
                 SMALL BUSINESS ADMINISTRATION
                OFFICE OF HEARINGS AND APPEALS
                       WASHINGTON, D.C.



                                )     
SIZE APPEAL OF:                 )    Docket No. SIZ-2002-03-05-11
                                )     
Chena Hot Springs Resort, LLC   )    Decided:  March 21, 2002
                                )
     Appellant                  )
                                )
SBA Disaster Loan               )
 Application No. 9TAK-4         )
                                )

                                
            ORDER DISMISSING APPEAL WITHOUT PREJUDICE

                                
     On  March 5, 2002, Appellant Chena Hot Springs Resort,  LLC
(Appellant),   appealed  the  determination  of   the   Disaster
Assistance - Area 4, Sacramento, California (Disaster Assistance
Area  Office), that Appellant was not a small business and  thus
ineligible  for Economic Injury Disaster Loan (EIDL) assistance.
The record in this case closed on March 21, 2002.

     On  March  15,  2002,  the  SBA published  in  the  Federal
Register  an  interim final rule (New Rule)  amending  its  EIDL
Program  regulations. [1]  Effective immediately, the  New  Rule
(1) increases the size standard for travel agencies, under North
American Industry Classification System code 561510, from $1  to
$3  million;  [2] and (2) changes the size measuring  date,  for
loan  applications related to the September 11, 2001,  terrorist
attacks  only,  to  the date SBA accepts the  EIDL  application,
rather than September 11, 2001. [3]  Further, so EIDL applicants
need  not  bear  the  burden of resubmitting their  applications
under  the  new  criteria, the New Rule  deems  "any  previously
submitted  application . . . pending or denied because  of  size
status . . . to have been resubmitted" on March 15, 2002. [4]

     Based  on the substance, rationale, and timing of  the  New
Rule, the Administrative Judge finds that the SBA intended it to
apply  to those businesses, such as Appellant, that have already
appealed  denial  of  their loan applications.   Therefore,  the
Administrative  Judge  concludes  that  this  appeal  should  be
dismissed  to  allow  Appellant  to  submit,  to  the   Disaster
Assistance Area Office, any evidence it has relevant to the  new
size  criteria  or any other additional evidence  it  wishes  to
submit.   This dismissal is without prejudice to the Appellant's
right to timely appeal any later determination that Appellant is
not a small business.

     Accordingly,  this  appeal is DISMISSED WITHOUT  PREJUDICE.
The  entire case file submitted by the Disaster Assistance  Area
Office is returned, as required by 13 C.F.R. Section 134.318.
                                


                                
                                
                                CHRISTOPHER HOLLEMAN
                                Administrative Judge


     
_________________________

      [1]  67  Fed.  Reg. 11874 (2002) (to be codified at 13  C.F.R.
parts  121  and  123).   A copy of the New Rule  is  attached  to
Appellant's copy of this order.
        Supplementary Information, Part I, 67 Fed. Reg. at 11874-
78.
       [2] Supplementary  Information, Part  II,  67  Fed.  Reg.  at
11878.
       Id.

                                               Posted: June, 2002