2682 Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Rules and Regulations

§ 103.5 How does SBA regulate an Agent’s

fees and provision of service?

(a) Any Applicant, Agent, or Packager

must execute and provide to SBA a

compensation agreement, and any

Lender Service Provider must execute

and provide to SBA a Lender Service

Provider agreement. Each agreement

governs the compensation charged for

services rendered or to be rendered to

the Applicant or lender in any matter

involving SBA assistance. SBA provides

the form of compensation agreement

and a suggested form of Lender Service

Provider agreement to be used by

Agents.

(b) Compensation agreements must

provide that in cases where SBA deems

the compensation unreasonable, the

Agent or Packager must: reduce the

charge to an amount SBA deems

reasonable, refund any sum in excess of

the amount SBA deems reasonable to

the Applicant, and refrain from charging

or collecting, directly or indirectly, from

the Applicant an amount in excess of

the amount SBA deems reasonable.

(c) Each Lender Service Provider must

enter into a written agreement with each

lender for whom it acts in that capacity.

SBA will review all such agreements.

Such agreements need not contain each

and every provision found in the SBA’s

suggested form of agreement. However,

each agreement must indicate that both

parties agree not to engage in any

sharing of secondary market premiums,

that the services to be provided are

accurately described, and that the

agreement is otherwise consistent with

SBA requirements. Subject to the

prohibition on splitting premiums,

lenders have reasonable discretion in

setting compensation for Lender Service

Providers. However, such compensation

may not be directly charged to an

Applicant or borrower.

Dated: January 22, 1996.

John T. Spotila,

Acting Administrator.

[FR Doc. 96–1350 Filed 1–26–96; 8:45 am]

BILLING CODE 8025–01–P

13 CFR Parts 112, 113, 124, 132, 134,

and 136

Rules of Procedure Governing Cases

Before the Office of Hearings and

Appeals

AGENCY: Small Business Administration.

ACTION: Final rule.

SUMMARY: In response to President

Clinton’s government-wide regulatory

reform initiative, the Small Business

Administration (SBA) has completed a

page-by-page, line-by-line review of all

of its existing regulations to determine

which might be revised or eliminated.

This final rule essentially reorganizes all

but two of the regulations pertaining to

procedures before the Office of Hearings

and Appeals (OHA) and consolidates

them into one part. In addition, the rule

clarifies, simplifies, and significantly

shortens those regulations. A number of

substantive changes are also made.

DATES: This rule is effective February

28, 1996. This rule applies with respect

to all cases filed with OHA on or after

February 28, 1996.

FOR FURTHER INFORMATION CONTACT: Gary

Fox, Chief Counsel for Special

Litigation, Office of General Counsel,

Small Business Administration, 409

Third Street SW., Washington, D.C.

20416, at (202) 205–6643.

SUPPLEMENTARY INFORMATION: On March

4, 1995, President Clinton issued a

memorandum to Federal agencies,

directing them to simplify their

regulations. In response to this

directive, SBA has completed a page-bypage, line-by-line review of all of its

existing regulations to determine which

might be revised or eliminated. This

rule consolidates most existing

regulations governing proceedings

before OHA into part 134 with the

exception of those solely relating to 8(a)

program proceedings, which are set

forth in part 124 of this chapter, and

those solely pertaining to proceedings

under the Program Fraud Civil

Remedies Act, which are contained in

part 142 of this chapter. This rule also

clarifies, simplifies, and revises the

current rules, reorganizes sections for

ease of use, and eliminates unnecessary

provisions.

The rule is divided into four subparts.

Subpart A contains general rules.

Subpart B contains rules of practice

generally applicable to all cases before

OHA except size and SIC code appeals.

However, as set forth in § 134.201, in

the case of a conflict between a

particular rule in part 134, and a rule of

procedure pertaining to OHA appearing

in another part of this title, the latter

rule shall govern. Subpart C contains

the rules applicable to size and SIC code

appeals. Subpart D contains the rules for

implementation of the Equal Access to

Justice Act, currently contained in part

132.

Proposed changes to parts 132 and

134 were published in the Federal

Register on November 27, 1995 (60 FR

58282). The public was invited to

comment during a thirty-day comment

period. SBA received no comments

concerning these parts during that time

period. Accordingly, the following final

rule contains no changes, other than

minor clarifications, technical

corrections, and deletions of

unnecessary language.

The proposed rule consolidated into

part 134 rules of practice only

applicable to 8(a) program appeals.

However, part 124 of chapter 13 is not

being amended at this time and, thus,

certain of the provisions in the proposed

rule which solely related to the 8(a)

program have been deleted as

unnecessary in light of the existing part

124. Specifically, proposed §§ 134.104,

134.203(a)(2), 134.213, 134.222 (a) and

(b), 134.223 (c) and (d), 134.224,

134.226(b), and 134.227(a) have been

deleted, in whole or in part, so as to

eliminate references to 8(a) program

appeals.

For a detailed description of the other

changes made to this rule, please refer

to SBA’s proposed rule, published at 60

FR 58282 (November 27, 1995).

Finally, parts 112, 113, 124, and 136

are amended so that the citations,

within those parts, to specific sections

of part 134 will correspond to the

section numbers set forth in this rule.

Compliance With Executive Orders

12612, 12778, and 12866, the

Regulatory Flexibility Act (5 U.S.C. 601

et seq.), and the Paperwork Reduction

Act (44 U.S.C. Ch. 35)

SBA certifies that this rule does not

have a significant economic impact on

a substantial number of small entities

within the meaning of Executive Order

12866 or the Regulatory Flexibility Act,

5 U.S.C. 601 et seq. This rule would

reorganize and simplify the rules

governing procedures before SBA’s

Office of Hearings and Appeals.

Contracting opportunities and financial

assistance for small business are not

affected by this rule. Therefore, it is not

likely to have an annual economic effect

of $100 million or more, result in a

major increase in costs or prices, or have

a significant adverse effect on

competition or the United States

economy.

For purposes of the Paperwork

Reduction Act, 44 U.S.C. Ch. 35, SBA

certifies that this rule contains no new

reporting or recordkeeping

requirements.

For purposes of Executive Order

12612, SBA certifies that this rule does

not have any federalism implications

warranting the preparation of a

Federalism Assessment.

For purposes of Executive Order

12778, SBA certifies that this rule is

drafted, to the extent practicable, in

accordance with the standards set forth

in section 2 of that Order.
Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Rules and Regulations 2683

List of Subjects

13 CFR Part 132

Claims, Equal Access to Justice,

Lawyers.

13 CFR Part 134

Administrative practice and

procedure, Organization and functions

(Government agencies).

For the above reasons, and under the

authority of 15 U.S.C. 634(b)(6), SBA

hereby amends 13 CFR Chapter I as

follows:

1. Part 134 is revised to read as

follows:

PART 134—RULES OF PROCEDURE

GOVERNING CASES BEFORE THE

OFFICE OF HEARINGS AND APPEALS

Subpart A—General Rules

Sec.

134.101 Definitions.

134.102 Jurisdiction of OHA.

134.103 Rules applicable to time periods

provided in this part.

Subpart B—Rules of Practice for Most

Cases

134.201 Scope of the rules in this subpart

B.

134.202 Commencement of cases.

134.203 The petition.

134.204 Service and filing requirements.

134.205 Motion for a more definite

statement.

134.206 The answer.

134.207 Amendments and supplemental

pleadings.

134.208 Representation in cases before

OHA.

134.209 Requirement of signature.

134.210 Intervention.

134.211 Motions.

134.212 Summary decision.

134.213 Discovery.

134.214 Subpoenas.

134.215 Interlocutory appeals.

134.216 Alternative dispute resolution

procedures.

134.217 Settlement.

134.218 Judges.

134.219 Sanctions.

134.220 Prohibition against ex parte

communications.

134.221 Prehearing conferences.

134.222 Oral hearing.

134.223 Evidence.

134.224 Standards for decision.

134.225 The record.

134.226 The decision.

134.227 Finality of decisions.

134.228 Review of initial decisions.

134.229 Termination of jurisdiction.

Subpart C—Rules of Practice for Appeals

From Size Determinations and SIC Code

Designations

134.301 Scope of the rules in this subpart

C.

134.302 Who may appeal.

134.303 No absolute right to an appeal from

a size determination.

134.304 Commencement of appeals from

size determinations and SIC code

designations.

134.305 The appeal petition.

134.306 Transmission of the case file.

134.307 Service and filing requirements.

134.308 Limitation on new evidence and

adverse inference from non-submission

in appeals from size determinations.

134.309 Response to an appeal petition.

134.310 Discovery.

134.311 Oral hearings.

134.312 Evidence.

134.313 Applicability of subpart B

provisions.

134.314 Standard of review.

134.315 The record.

134.316 The decision.

134.317 Termination of jurisdiction.

134.318 Return of the case file.

Subpart D—Implementation of the Equal

Access to Justice Act

134.401 What is the purpose of this

subpart?

134.402 Under what circumstances may I

apply for reimbursement?

134.403 What is an adversary adjudication?

134.404 What benefits may I claim?

134.405 Under what circumstances are fees

and expenses reimbursable?

134.406 Who is eligible for possible

reimbursement?

134.407 How do I know which eligibility

requirement applies to me?

134.408 What are the special rules for

calculating net worth and number of

employees?

134.409 What is the difference between a

fee and an expense?

134.410 Are there limitations on

reimbursement for fees and expenses?

134.411 What should I include in my

application for an award?

134.412 What must a net worth exhibit

contain?

134.413 What documentation do I need for

fees and expenses?

134.414 What deadlines apply to my

application for an award and where do

I send it?

134.415 How will proceedings relating to

my application for fees and expenses be

conducted?

134.416 How will I know if I receive an

award?

134.417 May I seek review of the ALJ’s

decision on my award?

134.418 How are awards paid?

Authority: 5 U.S.C. 504; 15 U.S.C. 632,

634(b)(6), and 637(a).

Subpart A—General Rules

§ 134.101 Definitions.

As used in this part:

AA/OHA means the Assistant

Administrator for OHA.

Act means the Small Business Act, 15

U.S.C. 631 et seq.

Address means the primary home or

business address of a person or entity,

including the street location or postal

box number, city or town, state, and

postal zip code.

Area Office means a Government

Contracting Area Office or a Disaster

Area Office of the Small Business

Administration.

Day means a calendar day, unless a

Judge specifies otherwise.

Hearing means the presentation and

consideration of argument and

evidence. A hearing need not include

live testimony or argument.

Investment Act means the Small

Business Investment Act of 1958, 15

U.S.C. 661 et seq.

Judge means an Administrative Law

Judge or an Administrative Judge of

OHA, or the AA/OHA when he or she

acts as an Administrative Judge.

OHA means the Office of Hearings

and Appeals.

Party means the petitioner,

respondent, or intervenor.

Person means an individual or any

form of business entity.

Petition means a written complaint, a

written appeal from an SBA

determination, or a written request for

the initiation of proceedings before

OHA.

Pleading means a petition, an order to

show cause commencing a case, an

appeal petition, an answer, or any

amendment or supplement to those

documents.

Respondent means any person or

governmental agency against which a

case has been brought before OHA.

SBA means the Small Business

Administration.

SIC code means Standard Industrial

Classification code.

Size determination means a formal

size determination made by an Area

Office.

§ 134.102 Jurisdiction of OHA.

OHA has authority to conduct

proceedings in the following cases:

(a) The revocation or suspension of

Small Business Investment Company

licenses, cease and desist orders, and

the removal or suspension of directors

and officers of licensees, under the

Investment Act and part 107 of this

chapter;

(b) Alleged violations of those civil

rights laws which are effectuated by

parts 112, 113, 117, and 136 of this

chapter;

(c) The revocation of the privilege of

a person to conduct business with SBA

under the Act and part 103 of this

chapter;

(d) The eligibility of, or preferred or

certified status of, any bank or non-bank

lender to continue to participate in SBA

loan programs under the Act and part

120 of this chapter;

(e) The suspension or termination of

surety bond program participants under
2684 Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Rules and Regulations

15 U.S.C. 694a et seq. and part 115 of

this chapter;

(f) The rights, privileges, or

obligations of development companies

under section 504 of the Investment Act

and part 120, subpart H, of this chapter;

(g) Allowance of fees and expenses

under the Equal Access to Justice Act,

5 U.S.C. 504;

(h) Debarment from appearance before

the SBA because of post-employment

restrictions under 18 U.S.C. 207 and

part 105 of this chapter;

(i) Collection of debts owed to SBA

and the United States under the Debt

Collection Act of 1982 and part 140 of

this chapter;

(j) Appeals from the following SBA

8(a) program determinations under the

Act and part 124 of this chapter:

(1) Denial of program admission based

solely on a negative finding as to social

disadvantage, economic disadvantage,

ownership or control; program

termination; program graduation; or

denial of a waiver of the requirement to

perform to completion an 8(a) contract;

and

(2) Program suspension;

(k) Appeals from size determinations

and SIC code designations under part

121 of this chapter;

(l) The imposition of civil penalties

and assessments against persons who

make false claims or statements to SBA

under the Program Fraud Civil

Remedies Act, 31 U.S.C. 3801–3812 and

part 142 of this chapter; and

(m) Any other hearing, determination,

or appeal proceeding referred to OHA

by the Administrator of SBA.

§ 134.103 Rules applicable to time periods

provided in this part.

(a) The day from which the time

period is computed is excluded, but the

last business day is counted, excluding

Saturday, Sunday, or Federal holiday.

(b) At the Judge’s initiative, or upon

the motion of a party showing good

cause, the Judge may modify any of the

applicable time limits, other than those

established by statute and those

governing when a case may be

commenced. Any motion to extend a

time limit must be filed and served

before the expiration of that time limit.

Subpart B—Rules of Practice for Most

Cases

§ 134.201 Scope of the rules in this

subpart B.

The rules in this subpart generally

apply to all proceedings over which

OHA has jurisdiction, except for appeals

from size determinations and SIC code

designations. Specific procedural rules

pertaining to 8(a) program appeals and

to proceedings under the Program Fraud

Civil Remedies Act are set forth,

respectively, in parts 124 and 142 of this

chapter. In the case of a conflict

between a particular rule in this part,

and a rule of procedure pertaining to

OHA appearing in another part of this

chapter, the latter rule shall govern.

§ 134.202 Commencement of cases.

A case may be commenced by filing

a written petition within the following

time periods:

(a) Except as provided by paragraphs

(b) through (d) of this section, no later

than 45 days from the date of service of

the SBA action or determination to

which the petition relates;

(b) In debt collection proceedings

under part 140 of this chapter, no later

than 15 days after receipt of a notice of

indebtedness and intention to collect

such debt by salary or administrative

offset;

(c) In applications for an award of fees

pursuant to subpart D of this part, no

later than 30 days after the decision to

which it applies becomes final;

(d) For 8(a) program suspension

proceedings, see § 124.211 of this

chapter.

§ 134.203 The petition.

(a) A petition must contain the

following:

(1) The basis of OHA’s jurisdiction;

(2) A clear and concise statement of

the factual basis of the case;

(3) The relief being sought; and

(4) The name, address, telephone

number, and signature of the petitioner

or its attorney.

(b) A petition which does not contain

all of the information required by

paragraph (a) of this section may be

dismissed, with or without prejudice, at

the Judge’s own initiative, or upon

motion of the respondent.

§ 134.204 Service and filing requirements.

(a) Service. Each party is responsible

for the service of its pleadings and other

submissions upon all other parties or

their attorneys. Unless otherwise

ordered by the Judge, service is made by

providing each party, or its attorney,

with a copy of the pleading or other

submission by personal delivery, firstclass mail, express mail, facsimile

transmission, or commercial delivery

service. Service by mail must be

directed as follows:

(1) To a party’s last-known residence

or business address if it has not yet

appeared in the case, or to the address

of a party which has appeared as shown

in its submission;

(2) If a party has appeared in the case

through an attorney, to the address of

the attorney shown in the party’s

submission or in a notice of appearance;

(3) If SBA is the party, unless an

attorney has been specified in SBA’s

submissions to OHA, by mailing to:

Office of General Counsel, Small

Business Administration, 409 Third

Street, S.W., Washington, D.C. 20416.

(b) Filing. (1) All pleadings and other

submissions must be filed with OHA by

personal delivery, first-class mail,

express mail, facsimile transmission, or

commercial delivery service. Filing may

only be accomplished at the following

address: Office of Hearings and Appeals,

Small Business Administration, 409

Third Street, S.W., Washington, D.C.

20416.

(2) If filing is by personal delivery or

commercial delivery service, such filing

must be accomplished between the

hours of 8:30 a.m. and 5:00 p.m. If filing

is by facsimile transmission, the

telephone number to be used may be

obtained by calling OHA.

(c) Copies. Only the original of a

pleading or other submission must be

filed with OHA. In the case of a

document offered as evidence, an

authenticated copy may be filed instead

of the original.

(d) Certificate of service. A signed

certificate stating how and when service

was made on all parties must be

attached to each pleading or other

submission filed with OHA.

(e) Date. Unless otherwise specified

by the Judge, the date of service or filing

is as follows:

(1) If by facsimile transmission, the

date of transmission.

(2) If by first-class mail, the date of

postmark. Where the postmark is

illegible or incomplete, there is a

rebuttable presumption that the

postmark was dated five days prior to

the date of receipt.

(3) If by personal delivery, express

mail, or commercial delivery service,

the date of receipt.

(f) Confidential information. Any

information in pleadings or other

submissions that is believed by the

submitting party to constitute

proprietary or confidential information

need not be served upon parties so long

as the deletions are clearly identified

and generally described in the

documents which are served. Upon

motion, the Judge may direct that the

withheld information be provided to

other parties, subject to any appropriate

protective order.

§ 134.205 Motion for a more definite

statement.

(a) Procedure. No later than 20 days

after service of the petition or order to

show cause, the respondent may serve
Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Rules and Regulations 2685

and file a motion requesting a more

definite statement of particular

allegations in the petition.

(b) Stay. The serving and filing of a

motion for a more definite statement

stays the time for serving and filing an

answer. The Judge will establish the

time for serving and filing an answer.

§ 134.206 The answer.

(a) A respondent must serve and file

an answer within 45 days after the

service of a petition or order to show

cause, except that debt collection

proceeding answers are due within 30

days.

(b) The answer must contain the

following:

(1) An admission or denial of each of

the factual allegations contained in the

petition or order to show cause, or a

statement that the respondent denies

knowledge or information sufficient to

determine the truth of a particular

allegation;

(2) Any affirmative defenses; and

(3) The name, address, telephone

number, and signature of the respondent

or its attorney.

(c) Allegations in the petition or order

to show cause which are not answered

in accordance with paragraph (b)(1) of

this section will be deemed admitted

unless injustice would occur.

(d) Upon an appeal from an SBA

determination concerning the 8(a)

program, SBA must serve and file the

administrative record pertaining to that

determination within the same time

period applicable to the service and

filing of its answer. If SBA fails to do so,

the Judge will issue an order directing

SBA to serve and file the administrative

record by a specified date.

(e) If the respondent fails to serve and

file an answer within the time period set

forth in paragraph (a) of this section, or

within any extended time period

granted by the Judge, that failure will

constitute a default. Following such a

default, the respondent may be

prohibited from participating further in

the case, except to serve and file the

administrative record in accordance

with paragraph (d) of this section.

§ 134.207 Amendments and supplemental

pleadings.

(a) Amendments. Upon motion, and

under terms needed to avoid prejudice

to any non-moving party, the Judge may

permit the service and filing of

amendments to pleadings. However, an

amendment will not be permitted if it

would cause unreasonable delay in the

determination of the matter.

(b) Supplements. Upon motion, and

under terms needed to avoid prejudice

to any non-moving party, the Judge may

permit the service and filing of a

supplemental pleading setting forth

relevant transactions or occurrences that

have taken place since the filing of the

original pleading.

(c) 8(a) appeals. In 8(a) program

appeals, amendments to pleadings and

supplemental pleadings will be

permitted by the Judge only upon a

showing of good cause.

(d) Answer. In an order permitting the

serving and filing of an amended or

supplemented petition or order to show

cause, the Judge will establish the time

for serving and filing an answer.

§ 134.208 Representation in cases before

OHA.

(a) A party may represent itself, or be

represented by a duly licensed attorney.

A member of a partnership may

represent the partnership, and an officer

may represent a corporation, trust, or

association.

(b) An attorney for a party who did

not appear on behalf of that party in the

party’s first filing with OHA must serve

and file a written notice of appearance.

(c) An attorney seeking to withdraw

from a case must serve and file a motion

for the withdrawal of his or her

appearance.

§ 134.209 Requirement of signature.

Every written submission to OHA,

other than evidence, must be signed by

the party filing that submission, or by

the party’s attorney. By signing the

submission, a party or its attorney

attests that the statements and

allegations in that submission are true to

the best of its knowledge, and that the

submission is not being filed for the

purpose of delay or harassment.

§ 134.210 Intervention.

(a) By SBA. SBA may intervene as of

right at any time in any case until final

decision.

(b) By interested persons. Any

individual, partnership, association,

corporation, trust, or governmental

agency may move to intervene at any

time until final decision by serving and

filing a motion to intervene containing

a statement of the movant’s interest in

the case and the necessity for

intervention to protect such interest.

The Judge may grant leave to intervene

upon such terms as he or she deems

appropriate.

§ 134.211 Motions.

(a) Contents. All motions must state

the relief being requested, as well as the

grounds and any authority for that

relief.

(b) Response. No later than 20 days

after the service of a motion, all nonmoving parties must serve and file a

response or be deemed to have

consented to the relief sought. Unless

the Judge directs otherwise, the moving

party will have no right to reply to a

response, nor will oral argument be

heard on the motion.

(c) Service of orders. OHA will serve

upon all parties any written order

issued in response to a motion.

§ 134.212 Summary decision.

(a) Grounds. A party may move for

summary decision at any time as to all

or any portion of the case, on the

grounds that there is no genuine issue

as to any material fact, and that the

moving party is entitled to a decision in

its favor as a matter of law.

(b) Contents of motion. The motion

must include a statement of the material

facts believed not to be disputed, and

relevant law. Supporting affidavits may

also be included.

(c) Cross-motions. In its response to a

motion for summary decision, a party

may cross-move for summary decision.

The initial moving party may serve and

file a response to any cross-motion for

summary decision within 20 days after

the service of that cross-motion.

(d) Stay. A motion for summary

decision stays the time to answer. The

Judge will establish the time for serving

and filing an answer in the order

determining the motion for summary

decision.

§ 134.213 Discovery.

(a) Motion. A party may obtain

discovery only upon motion, and for

good cause shown. For 8(a) program

appeals other than those involving

suspensions, see § 124.210 of this

chapter.

(b) Forms. The forms of discovery

which a Judge can order under

paragraph (a) of this section include

requests for admissions, requests for

production of documents,

interrogatories, and depositions.

(c) Limitations. Discovery may be

limited in accordance with the terms of

a protective order. Further, privileged

information and irrelevant issues or

facts will not be subject to discovery.

(d) Disputes. If a dispute should arise

between the parties over a particular

discovery request, the party seeking

discovery may serve and file a motion

to compel discovery. Discovery may be

opposed on the grounds of harassment,

needless embarrassment, irrelevance,

undue burden or expense, privilege, or

confidentiality.

§ 134.214 Subpoenas.

(a) Availability. At the request of a

party, or upon his or her own initiative,

a Judge may issue a subpoena requiring
2686 Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Rules and Regulations

a witness to appear and testify, or to

produce particular documents, at a

specified time and place.

(b) Requests. A request for the

issuance of a subpoena must be written,

served upon all parties, and filed. The

request must clearly identify the witness

and any documents to be subpoenaed,

and must set forth the relevance of the

testimony or documents sought.

(c) Service. A subpoena may only be

served by personal delivery. The

individual making service shall prepare

an affidavit stating the date, time, and

place of the service. The party which

obtained the subpoena must serve upon

all other parties, and file with OHA, a

copy of the subpoena and affidavit of

service within 2 days after service is

made.

(d) Motion to quash. A motion to limit

or quash a subpoena must be served and

filed within 10 days after service of the

subpoena, or by the return date of the

subpoena, whichever date comes first.

Any response to the motion must be

served and filed within 10 days after

service of the motion, unless a shorter

time is specified by the Judge. No oral

argument will be heard on the motion

unless the Judge directs otherwise.

§ 134.215 Interlocutory appeals.

(a) General. A motion for leave to take

an interlocutory appeal from a Judge’s

ruling will not be entertained in those

proceedings in which OHA issues final

decisions. In all other cases, an

interlocutory appeal will be permitted

only if, upon motion by a party, or upon

the Judge’s own initiative, the Judge

certifies that his or her ruling raises a

question which is immediately

appealable. Interlocutory appeals will

be decided by the AA/OHA or a

designee.

(b) Motion for certification. A party

must serve and file a motion for

certification no later than 20 days after

issuance of the ruling to which the

motion applies. A denial of the motion

does not preclude objections to the

ruling in any subsequent request for

review of an initial decision.

(c) Basis for certification. The Judge

will certify a ruling for interlocutory

appeal only if he or she determines that:

(1) The ruling involves an important

question of law or policy about which

there is substantial ground for a

difference of opinion; and

(2) An interlocutory appeal will

materially expedite resolution of the

case, or denial of an interlocutory

appeal would cause undue hardship to

a party.

(d) Stay of proceedings. A stay while

an interlocutory appeal is pending will

be at the discretion of the Judge.

§ 134.216 Alternative dispute resolution

procedures.

At any time during the pendency of

a case, the parties may submit a joint

motion requesting that the Judge permit

the use of alternative dispute resolution

procedures to assist in resolving the

matter. If the motion is granted, the

Judge will also stay the proceedings

before OHA, in whole or in part, as he

or she deems appropriate, pending the

outcome of the alternative dispute

resolution procedures.

§ 134.217 Settlement.

At any time during the pendency of

a case, the parties may submit a

settlement agreement, signed by all

settling parties, to the Judge. Settlement

negotiations, and rejected settlement

agreements, are not admissible into

evidence.

§ 134.218 Judges.

(a) Assignment. The AA/OHA will

assign all cases subject to the

Administrative Procedure Act, 5 U.S.C.

551 et seq., to an Administrative Law

Judge. The AA/OHA will assign all

other cases before OHA to either an

Administrative Law Judge or an

Administrative Judge, or, if the AA/

OHA is a duly licensed attorney, to

himself or herself.

(b) Authority. Except as otherwise

limited by this part, or by statute or

other regulation, a Judge has the

authority to take all appropriate action

to ensure the efficient, prompt, and fair

determination of a case, including, but

not limited to, the authority to

administer oaths and affirmations and to

subpoena and examine witnesses.

(c) Recusal. Upon the motion of a

party, or upon the Judge’s own

initiative, a Judge will promptly recuse

himself or herself from further

participation in a case whenever

disqualification is appropriate due to

conflict of interest, bias, or some other

significant reason. A denial of a motion

for recusal may be immediately

appealed to the AA/OHA, or to the

Administrative Law Judge if the AA/

OHA is the Judge, but that appeal will

not stay proceedings in the case.

§ 134.219 Sanctions.

A Judge may impose appropriate

sanctions, except for fees, costs, or

monetary penalties, which he or she

deems necessary to serve the ends of

justice, if a party or its attorney:

(a) Fails to comply with an order of

the Judge;

(b) Fails to comply with the rules set

forth in this part;

(c) Acts in bad faith or for purposes

of delay or harassment;

(d) Submits false statements

knowingly, recklessly, or with

deliberate disregard for the truth; or

(e) Otherwise acts in an unethical or

disruptive manner.

§ 134.220 Prohibition against ex parte

communications.

No person shall consult or

communicate with a Judge concerning

any fact, question of law, or SBA policy

relevant to the merits of a case before

that Judge except on prior notice to all

parties, and with the opportunity for all

parties to participate. In the event of

such prohibited consultation or

communication, the Judge will disclose

the occurrence in accordance with 5

U.S.C. 557(d)(1), and may impose such

sanctions as he or she deems

appropriate.

§ 134.221 Prehearing conferences.

Prior to a hearing, the Judge, at his or

her own initiative, or upon the motion

of any party, may direct the parties or

their attorneys to appear, by telephone

or in person, in order to consider any

matter which may assist in the efficient,

prompt, and fair determination of the

case. The conference may be recorded

verbatim at the discretion of the Judge,

and, if so, a party may purchase a

transcript, at its own expense, from the

recording service.

§ 134.222 Oral hearing.

(a) Availability. A party may obtain an

oral hearing only if:

(1) It is required by regulation; or

(2) Following the motion of a party, or

at his or her own initiative, the Judge

orders an oral hearing upon concluding

that there is a genuine dispute as to a

material fact that cannot be resolved

except by the taking of testimony and

the confrontation of witnesses; or

(3) In 8(a) program appeals other than

those involving suspensions, the

requirements of § 124.210 of this

chapter are met.

(b) Place and time. The place and

time of oral hearings is within the

discretion of the Judge, who shall give

due regard to the necessity and

convenience of the parties, their

attorneys, and witnesses. The Judge may

direct that an oral hearing be conducted

by telephone.

(c) Public access. Unless otherwise

ordered by the Judge, all oral hearings

are public.

(d) Payment of subpoenaed witnesses.

A party which obtains a witness’

presence at an oral hearing by subpoena,

must pay to that witness the fees and

mileage costs to which the witness

would be entitled in Federal Court.

(e) Recording. Oral hearings will be

recorded verbatim. A transcript of a
Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Rules and Regulations 2687

recording may be purchased by a party,

at its own expense, from the recording

service.

§ 134.223 Evidence.

(a) Federal Rules of Evidence. Unless

contrary to a particular rule in this part,

or an order of the Judge, the Federal

Rules of Evidence will be used as a

general guide in all cases before OHA.

(b) Hearsay. Hearsay evidence is

admissible if it is deemed by the Judge

to be relevant and reliable.

§ 134.224 Standards for decision.

The decision of a Judge will be based

upon a preponderance of the evidence.

§ 134.225 The record.

(a) Contents. The record of a case

before OHA will consist of all pleadings,

motions, and other non-evidentiary

submissions, all admitted evidence, all

orders and decisions, and any

transcripts of proceedings in the case.

(b) Public access. Except for

information subject to a protective

order, proprietary or confidential

information withheld in accordance

with this part, or any other information

which is excluded from disclosure by

law or regulation, the record will be

available at OHA for public inspection

during normal business hours. Copies of

the documents available for public

inspection may be obtained by the

public upon payment of any duplication

charges.

(c) Closure. The Judge will set the date

upon which the pre-decisional record of

the case will be closed, and after which

no additional evidence or argument will

be accepted.

§ 134.226 The decision.

(a) Contents. Following closure of the

record, the Judge will issue a decision

containing findings of fact and

conclusions of relevant law, reasons for

such findings and conclusions, and any

relief ordered. The contents of the

record will constitute the exclusive

basis for a decision.

(b) Time limits. Decisions pertaining

to the collection of debts owed to SBA

and the United States under the Debt

Collection Act of 1982 and part 140 of

this chapter must be rendered within 60

days after a petition is filed.

(c) Service. OHA will serve a copy of

all written decisions on:

(1) Each party, or, if represented by

counsel, on its counsel; and

(2) SBA’s General Counsel, or his or

her designee, if SBA is not a party.

§ 134.227 Finality of decisions.

(a) Final decisions. A decision on the

merits shall be a final decision, upon

issuance, in proceedings concerning the

collection of debts owed to SBA and the

United States, under the Debt Collection

Act of 1982 and part 140 of this chapter.

(b) Initial decisions. All decisions on

the merits other than those set forth in

paragraph (a) of this section are initial

decisions. However, unless a request for

review is filed pursuant to § 134.228(a),

an initial decision shall become the

final decision of SBA 30 days after its

issuance.

§ 134.228 Review of initial decisions.

(a) Request for review. Within 30 days

after the service of an initial decision,

any party, or SBA’s Office of General

Counsel, may serve and file with OHA

a request for review. A request for

review must set forth the filing party’s

specific objections to the initial

decision, and any alleged support for

those objections in the record, or in case

law, statute, regulation, or SBA policy.

A party must serve its request for review

upon all other parties and upon SBA’s

Office of General Counsel.

(b) Response. Within 20 days after the

service of a request for review, any

party, or SBA’s Office of General

Counsel, may serve and file with OHA

a response. A party must serve its

response upon all other parties and

upon SBA’s Office of General Counsel.

(c) Transfer of the record. Upon

receipt of all responses, or 30 days after

the filing of a request for review,

whichever is earlier, OHA will transfer

the record of the case to the

Administrator. The Administrator, or

his or her designee, will then review the

record.

(d) Standard of review. Upon review,

the Administrator, or his or her

designee, will sustain the initial

decision unless it is based on an

erroneous finding of fact or an

erroneous interpretation or application

of case law, statute, regulation, or SBA

policy.

(e) Order. The Administrator, or his or

her designee, will:

(1) Affirm, reverse, or modify the

initial decision, which determination

will become the final decision of the

SBA upon issuance; or

(2) Remand the initial decision to the

Judge for appropriate further

proceedings.

§ 134.229 Termination of jurisdiction.

The jurisdiction of OHA will

terminate upon the issuance of a

decision by a Judge resolving all

material issues of fact and law unless

the case is subsequently remanded for

appropriate further proceedings,

pursuant to § 134.228(e)(2).

Subpart C—Rules of Practice for

Appeals From Size Determinations and

SIC Code Designations

§ 134.301 Scope of the rules in this

subpart C.

The rules of practice in this subpart

C apply to all appeals to OHA from:

(a) Formal size determinations made

by an SBA Government Contracting

Area Office, under part 121 of this

chapter, or by a Disaster Area Office, in

connection with applications for

disaster loans; and

(b) SIC code designations, pursuant to

part 121 of this chapter.

§ 134.302 Who may appeal.

Appeals from size determinations and

SIC code designations may be filed with

OHA by the following, as applicable:

(a) Any person adversely affected by

a size determination;

(b) Any person adversely affected by

a SIC code designation. However, with

respect to an 8(a) contract, only the

Associate Administrator for Minority

Enterprise Development may appeal a

SIC code designation;

(c) The Associate or Assistant

Administrator for the SBA program

involved, through SBA’s Office of

General Counsel; or

(d) The procuring agency contracting

officer responsible for the procurement

affected by a size determination.

§ 134.303 No absolute right to an appeal

from a size determination.

It is within the discretion of the Judge

whether to accept an appeal from a size

determination. If the Judge decides not

to consider such an appeal, he or she

will issue an order denying review, and

specifying the reasons for the decision.

§ 134.304 Commencement of appeals from

size determinations and SIC code

designations.

(a) Appeals from size determinations

and SIC code designations must be

commenced by serving and filing an

appeal petition as follows:

(1) If appeal is from a size

determination in a pending

procurement or pending Government

property sale, then the appeal petition

must be served and filed within 15 days

after service of the size determination;

(2) If appeal is from a size

determination other than one in a

pending procurement or pending

Government property sale, then the

appeal petition must be served and filed

within 30 days after service of the size

determination;

(3) If appeal is from a SIC code

designation, then the appeal petition

must be served and filed within 10 days

after the issuance of the initial
2688 Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Rules and Regulations

invitation for bids or initial request for

proposals or quotations.

(b) An untimely appeal will be

dismissed. However, an appeal which is

untimely under paragraph (a)(1) of this

section, with respect to a pending

procurement or sale, may, if timely

under paragraph (a)(2) of this section,

proceed with respect to future

procurements or sales.

§ 134.305 The appeal petition.

(a) Form. There is no required format

for an appeal petition. However, it must

include the following information:

(1) The Area Office which issued the

size determination, or the contracting

office which designated the SIC code;

(2) The solicitation or contract

number, and the name, address, and

telephone number of the contracting

officer;

(3) A full and specific statement as to

why the size determination or SIC code

designation is alleged to be in error,

together with argument supporting such

allegations; and

(4) The name, address, telephone

number, and signature of the appellant

or its attorney.

(b) Service of size determination

appeals. The appellant must serve the

appeal petition upon each of the

following:

(1) The SBA official who issued the

size determination;

(2) The contracting officer responsible

for the procurement affected by a size

determination;

(3) The business concern whose size

status is at issue;

(4) All persons who filed protests; and

(5) SBA’s Office of General Counsel.

(c) Service of SIC appeals. The

appellant must serve the contracting

officer who made the SIC code

designation.

(d) Certificate of service. The

appellant must attach to the appeal

petition a signed certificate identifying

each person or governmental agency

which was served with the notice of

appeal, and how and when each of

those persons or governmental agencies

was served.

(e) Dismissal. An appeal petition

which does not contain all of the

information required in paragraph (a) of

this section may be dismissed, with or

without prejudice, by the Judge at his or

her own initiative, or upon motion of a

respondent.

§ 134.306 Transmission of the case file.

Upon receipt of an appeal petition

pertaining to a size determination, the

Area Office which issued the size

determination must immediately send

to OHA the entire case file relating to

that determination. Upon receipt of an

appeal petition pertaining to a SIC code

designation, the contracting officer who

designated the SIC code must

immediately send to OHA the

solicitation relating to that designation.

§ 134.307 Service and filing requirements.

The provisions of § 134.204 apply to

the service and filing of all pleadings

and other submissions permitted under

this subpart.

§ 134.308 Limitation on new evidence and

adverse inference from non-submission in

appeals from size determinations.

(a) Evidence not previously presented

to the Area Office which issued the size

determination being appealed will not

be considered by a Judge unless:

(1) The Judge, on his or her own

initiative, orders the submission of such

evidence; or

(2) A motion is served and filed

establishing good cause for the

submission of such evidence.

(b) If the submission of evidence is

ordered by a Judge, and the party in

possession of that evidence does not

submit it, the Judge may draw adverse

inferences against that party.

§ 134.309 Response to an appeal petition.

(a) Who may respond. Any person

served with an appeal petition, or any

other interested person, may serve and

file a response supporting or opposing

the appeal. The response should present

argument.

(b) Time limits. Unless otherwise

specified by the Judge, a respondent

must serve and file a response within 10

days after service of the appeal petition

upon it.

(c) Service. The respondent must

serve its response upon the appellant

and upon each of the persons identified

in the certificate of service attached to

the appeal petition pursuant to

§ 134.305.

(d) Reply to a response. No reply to

a response will be permitted unless the

Judge directs otherwise.

§ 134.310 Discovery.

Discovery will not be permitted in

appeals from size determinations or SIC

code designations.

§ 134.311 Oral hearings.

Oral hearings will not be held in

appeals from SIC code designations, and

will be held in appeals from size

determinations only upon a finding by

the Judge of extraordinary

circumstances. If such an oral hearing is

ordered, the proceeding shall be

conducted in accordance with those

rules of subpart B of this part as the

Judge deems appropriate.

§ 134.312 Evidence.

To the extent the rules in this subpart

permit the submission of evidence, the

provisions of § 134.223 (a) and (b)

apply.

§ 134.313 Applicability of subpart B

provisions.

The following sections from subpart B

of this part apply to an appeal under

this subpart C: § 134.207(a) (pertaining

to amendments to pleadings); § 134.208

(Representation in cases before OHA);

§ 134.209 (Requirement of signature);

§ 134.210 (Intervention); § 134.211

(Motions); § 134.214 (Subpoenas);

§ 134.218 (Judges); § 134.219

(Sanctions); and § 134.220 (Prohibition

against ex parte communications).

§ 134.314 Standard of review.

The standard of review is whether the

size determination or SIC code

designation was based on clear error of

fact or law.

§ 134.315 The record.

Where relevant, the provisions of

§ 134.225 (a), (b), and (c) apply. In an

appeal under this subpart, the contents

of the record also include the case file

or solicitation submitted to OHA in

accordance with § 134.306.

§ 134.316 The decision.

(a) Contents. Following closure of the

record, the Judge will issue a decision

containing findings of fact and

conclusions of law, reasons for such

findings and conclusions, and any relief

ordered.

(b) Finality. The decision is the final

decision of the SBA and becomes

effective upon issuance.

(c) Service. OHA will serve a copy of

all written decisions on:

(1) Each party, or, if represented by

counsel, on its counsel; and

(2) SBA’s General Counsel, or his or

her designee, if SBA is not a party.

§ 134.317 Termination of jurisdiction.

The jurisdiction of OHA will

terminate upon the issuance of a

decision.

§ 134.318 Return of the case file.

Upon termination of jurisdiction,

OHA will return the case file to the

transmitting Area Office. The remainder

of the record will be retained by OHA.

Subpart D—Implementation of the

Equal Access to Justice Act

§ 134.401 What is the purpose of this

subpart?

The Equal Access to Justice Act, 5

U.S.C. 504, establishes procedures by

which prevailing parties in certain
Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Rules and Regulations 2689

administrative proceedings may apply

for reimbursement of fees and other

expenses. Eligible parties may receive

awards when they prevail over SBA,

unless SBA’s position in the proceeding

was ‘‘substantially justified’’ or, as

provided in § 134.405(b), special

circumstances make an award unjust.

The rules of this subpart explain which

OHA proceedings are covered, who may

be eligible for an award of fees and

expenses, and how to apply for such an

award.

§ 134.402 Under what circumstances may I

apply for reimbursement?

You may apply for reimbursement

under this subpart if you meet the

eligibility requirements in § 134.406 and

you prevail over SBA in a final decision

in:

(a) The type of administrative

proceeding which qualifies as an

‘‘adversary adjudication’’ under

§ 134.403; or

(b) An ancillary or subsidiary issue in

that administrative proceeding that is

sufficiently significant and discrete to

merit treatment as a separate unit; or

(c) A matter which the agency orders

to be determined as an ‘‘adversary

adjudication’’ under 5 U.S.C. 554.

§ 134.403 What is an adversary

adjudication?

For purposes of this subpart,

adversary adjudications are

administrative proceedings before OHA

which involve SBA as a party and

which are required to be conducted by

an Administrative Law Judge (‘‘ALJ’’).

These adjudications (‘‘administrative

proceedings’’) include those

proceedings listed in § 134.102 (a), (i),

and (j)(1), but do not include other OHA

proceedings such as those listed in

§ 134.102(k). In order for an

administrative proceeding to qualify,

SBA must have been represented by

counsel or by another representative

who enters an appearance and

participates in the proceeding.

§ 134.404 What benefits may I claim?

You may seek reimbursement for

certain reasonable fees and expenses

incurred in prosecuting or defending a

claim in an administrative proceeding.

§ 134.405 Under what circumstances are

fees and expenses reimbursable?

(a) If you are a prevailing eligible

party, you may receive an award for

reasonable fees and expenses unless the

position of the agency in the proceeding

is found by the ALJ to be ‘‘substantially

justified’’, or special circumstances exist

which make an award unjust. The

‘‘position of the agency’’ includes not

only the position taken by SBA in the

administrative proceeding, but also the

position which it took in the action

which led to the administrative

proceeding. No presumption arises that

SBA’s position was not substantially

justified simply because it did not

prevail in a proceeding. However, upon

your assertion that the position of SBA

was not substantially justified, SBA will

be required to establish that its position

was reasonable in fact and law.

(b) The ALJ may reduce or deny an

award for reimbursement if you have

unreasonably protracted the

administrative proceeding or if other

special circumstances would make the

award unjust.

(c) Awards for fees and expenses

incurred before the date on which an

administrative proceeding was initiated

are allowable only if you can

demonstrate that they were reasonably

incurred in preparation for the

proceeding.

§ 134.406 Who is eligible for possible

reimbursement?

(a) You are eligible for possible

reimbursement if:

(1) You are an individual, owner of an

unincorporated business, partnership,

corporation, association, organization,

or unit of local government; and

(2) You are a party, as defined in 5

U.S.C. 551(3); and

(3) You are the prevailing party; and

(4) You meet certain net worth and

employee eligibility requirements set

forth in § 134.407.

(b) You are not eligible for possible

reimbursement if you participated in the

administrative proceeding only on

behalf of persons or entities that are

ineligible.

§ 134.407 How do I know which eligibility

requirement applies to me?

Follow this chart to determine your

eligibility. You should calculate your

net worth and the number of your

employees as of the date the

administrative proceeding was initiated.

If your participation in the proceeding was: Eligibility requirements:

(1) As an individual rather than a business owner .................................. (1) Personal net worth may not exceed 2 million dollars.

(2) As owner of an unincorporated business ........................................... (2) Personal net worth may not exceed 7 million dollars, and

No more than 500 employees.

(3) As a partnership, corporation, association, organization, or unit of

local government.

(3) Business net worth may not exceed 7 million dollars, and

No more than 500 employees.

(4) As a charitable or other tax-exempt organization described in 26

U.S.C. 501(c)(3) or a cooperative association as defined in 12 U.S.C.

1141j(a).

(4) No net worth limitations, and

No more than 500 employees.

§ 134.408 What are the special rules for

calculating net worth and number of

employees?

(a) Your net worth must include the

value of any assets disposed of for the

purpose of meeting an eligibility

standard, and must exclude any

obligation incurred for that purpose.

Transfers of assets, or obligations

incurred, for less than reasonably

equivalent value will be presumed to

have been made for the purpose of

meeting an eligibility standard.

(b) If you are an owner of an

unincorporated business, or a

partnership, corporation, association,

organization, or unit of local

government, your net worth must

include the net worth of all of your

affiliates. ‘‘Affiliates’’ are:

(1) Corporations or other business

entities which directly or indirectly own

or control a majority of the voting shares

or other ownership interests in the

applicant concern; and

(2) Corporations or other business

entities in which the applicant concern

directly or indirectly owns or controls a

majority of the voting shares or other

ownership interests.

(c) Your employees include all those

persons regularly working for you at the

time the administrative proceeding was

initiated, whether or not they were at

work on that date. Part-time employees

must be included on a proportional

basis. You must include the employees

of all your affiliates in your total

number of employees.

§ 134.409 What is the difference between a

fee and an expense?

A fee is a charge to you for the

professional services of attorneys,

agents, or expert witnesses rendered in

connection with your case. An expense
2690 Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Rules and Regulations

is the cost to you of any study, analysis,

engineering report, test, project, or

similar matter prepared in connection

with your case.

§ 134.410 Are there limitations on

reimbursement for fees and expenses?

(a) Awards will be calculated on the

basis of fees and expenses actually

incurred. If services were provided by

one or more of your employees, or were

made available to you free, you may not

seek an award for those services. If

services were provided at a reduced

rate, fees and expenses will be

calculated at that reduced rate.

(b) In determining the reasonableness

of the fees for attorneys, agents or expert

witnesses, the ALJ will consider at least

the following:

(1) That provider’s customary fee for

like services;

(2) The prevailing rate for similar

services in the community in which that

provider ordinarily performs services;

(3) The time actually spent in

representing you; and

(4) The time reasonably spent in light

of the difficulty and complexity of the

issues.

(c) An award for the fees of an

attorney or agent may not exceed $75

per hour, and an award for the fees of

an expert witness may not exceed $25

per hour, regardless of the rate charged.

(d) An award for the reasonable cost

of any study, analysis, engineering

report, test, project or similar matter

prepared on your behalf may not exceed

the prevailing rate payable for similar

services, and you may be reimbursed

only if the study or other matter was

necessary to the preparation of your

case.

§ 134.411 What should I include in my

application for an award?

(a) Your application must be in the

form of a written petition which is

served and filed in accordance with

§ 134.204. It must contain the following

information:

(1) A statement that OHA has

jurisdiction over the case pursuant to

§ 134.102(g);

(2) Identification of the administrative

proceeding for which you are seeking an

award;

(3) A statement that you have

prevailed, and a list of each issue in

which you claim the position of SBA

was not substantially justified;

(4) Your status as an individual,

owner of an unincorporated business,

partnership, corporation, association,

organization, or unit of local

government;

(5) Your net worth and number of

employees as of the date the

administrative proceeding was initiated,

or a statement that one or both of these

eligibility requirements do not apply to

you;

(6) The amount of fees and expenses

you are seeking, along with the invoice

or billing statement from each service

provider;

(7) A description of any affiliates (as

that term is defined in § 134.408), or a

statement that no affiliates exist;

(8) A statement that the application

and any attached statements and

exhibits are true and complete to the

best of your knowledge and that you

understand a false statement on these

documents is a felony punishable by

fine and imprisonment under 18 U.S.C.

1001; and

(9) (i) Your name and address;

(ii) Your signature, or the signature of

either a responsible official or your

attorney; and

(iii) The address and telephone

number of the person who signs the

application.

(b) You should follow this chart to

determine which further documents

must be included with your application:

Party Required documents

(1) Individual, owner of unincorporated business, partnership, corporation, association, organization, or unit of local government.(1) Net worth exhibit.

(2) Organization qualified as tax-exempt under 26 U.S.C. 501(c)(3) ...... (2) Copy of a ruling by the Internal Revenue Service that you qualify

as a 501(c)(3) organization or

Statement that you were listed in the current edition of IRS Bulletin 78

as of the date the administrative proceeding was initiated.

(3) Tax-exempt religious organization not required to obtain a ruling

from the Internal Revenue Service on its exempt status.

(3) Description of your organization and the basis for your belief you

are exempt.

(4) Cooperative association as defined in 12 U.S.C. 1141j(a) ................ (4) Copy of your charter or articles of incorporation, and

Copy of your bylaws.

§ 134.412 What must a net worth exhibit

contain?

(a) A net worth exhibit may be in any

format, but it must contain:

(1) List of all assets and liabilities for

you and each affiliate in detail sufficient

to show your eligibility;

(2) Aggregate net worth for you and

all affiliates; and

(3) Description of any transfers of

assets from, or obligations incurred by,

you or your affiliates within one year

prior to the initiation of the

administrative proceeding which

reduced your net worth below the

eligibility ceiling, or a statement that no

such transfers occurred.

(b) The net worth exhibit must be

filed with your application, but will not

be part of the public record of the

proceeding. Further, in accordance with

the provisions of § 134.204(g), you need

not serve your net worth exhibit on

other parties.

§ 134.413 What documentation do I need

for fees and expenses?

You must submit a separate itemized

statement or invoice for the services of

each provider for which you seek

reimbursement. Each separate statement

or invoice must contain:

(a) The hours worked in connection

with the proceeding by each provider

supplying a billable service;

(b) A description of the specific

services performed by each provider;

(c) The rate at which fees were

computed for each provider;

(d) The total charged by the provider

on that statement or invoice; and

(e) The provider’s verification that the

statement or invoice is true to the best

of his or her knowledge and that he or

she understands that a false statement is

punishable by fine and imprisonment

under 18 U.S.C. 1001.

§ 134.414 What deadlines apply to my

application for an award and where do I

send it?

After you have prevailed in an

administrative proceeding or in a

discrete issue therein, you must serve,

and file with OHA, your written

application for an award, and its

attachments, no later than 30 days after

the decision in the administrative

proceeding becomes final under

§ 134.227. The deadline for filing an

application for an award may not be

extended. If SBA or another party

requests review of the decision in the

underlying administrative proceeding,
Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Rules and Regulations 2691

your request for an award for fees and

expenses may still be filed, but it will

not be considered by the ALJ until a

final decision is rendered.

§ 134.415 How will proceedings relating to

my application for fees and expenses be

conducted?

Proceedings will be conducted in

accordance with the provisions in

subpart B of this part.

§ 134.416 How will I know if I receive an

award?

The ALJ will issue an initial decision

on the merits of your request for an

award which will become final in 30

days unless a request for review is filed

under § 134.228. The decision will

include findings on your eligibility, on

whether SBA’s position was

substantially justified, and on the

reasonableness of the amount you

requested. Where applicable, there will

also be findings on whether you have

unduly protracted the proceedings or

whether other circumstances make an

award unjust, and an explanation of the

reason for the difference, if any,

between the amount requested and the

amount awarded. If you have sought an

award against more than one federal

agency, the decision will allocate

responsibility for payment among the

agencies with appropriate explanation.

§ 134.417 May I seek review of the ALJ’s

decision on my award?

You may request review of the ALJ’s

decision on your award by filing a

request for review in accordance with

§ 134.228. You may seek judicial review

of a final decision as provided in 5

U.S.C. 504(c)(2).

§ 134.418 How are awards paid?

If you are seeking payment of an

award, you must submit a copy of the

final decision, along with your

certification that you are not seeking

judicial review of either the decision in

the adversary adjudication, or of the

award, to the following address: Chief

Financial Officer, Office of Financial

Operations, SBA, P.O. Box 205, Denver,

CO 80201–0205. SBA will pay you the

amount awarded within 60 days of

receipt of your request unless it is

notified that you or another party has

sought judicial review of the underlying

decision or the award.

PART 132—[REMOVED]

2. Part 132 is hereby removed.

PARTS 112, 113, 124, and 136—

[AMENDED]

3. In accordance with the list below,

for each section indicated in the left

column, remove the reference indicated

in the middle column from wherever it

appears in the section, and add in its

place the reference in the right column:

Section Remove Add

112.11(b) ....... 134.34 ........... 134.228

112.11(b) ....... 134.19 ........... 134.222

112.11(b) ....... 134.21 ........... 134.211

112.11(c) ....... 134.32(b) ...... 134.227(b)

113.7(b) ......... 134.34 ........... 134.228

113.7(b) ......... 134.19 ........... 134.222

113.7(b) ......... 134.21 ........... 134.211

113.7(c) ......... 134.32(b) ...... 134.227(b)

124.210(b) ..... 134.11(a) ...... 134.203(a)

124.210(d)(2) 134.12 ........... 134.202

124.211(g) ..... 134.19 ........... 134.222

136.170(j)(2) .. 134.34(a) ...... 134.228(a)

136.170(j)(2) .. 134.34(b) ...... 134.228(a)

136.170(j)(2) .. 134.32(b)(3) .. 134.227(b)

Philip Lader,

Administrator.

[FR Doc. 96–1158 Filed 1–26–96; 8:45 am]

BILLING CODE 8025–01–P

13 CFR Part 142

Program Fraud Civil Remedies Act

Regulations

AGENCY: Small Business Administration.

ACTION: Final rule.

SUMMARY: In response to President

Clinton’s government-wide regulatory

reform initiative, the Small Business

Administration (SBA) has completed a

page-by-page, line-by-line review of all

of its existing regulations to determine

which might be revised or eliminated.

This rule renumbers, reorganizes,

condenses and rewrites in plain

language the existing regulation

implementing the ‘‘Program Fraud Civil

Remedies Act of 1986’’. The goal of the

plain language style is to eliminate

redundancies, ambiguities and

cumbersome wording. The goal of the

reorganization and revision is to make

this part consistent in practice and

procedure with other parts of this title

and to clarify requirements under this

regulation and applicable statutes of the

United States.

EFFECTIVE DATE: This rule is effective

February 28, 1996.

FOR FURTHER INFORMATION CONTACT:

Cheri Wolff, Chief Counsel for General

Litigation; Office of General Counsel, at

(202) 205–6643.

SUPPLEMENTARY INFORMATION: On March

4, 1995, President Clinton issued a

Memorandum to each federal agency,

directing them to simplify their

regulations. In response to this

directive, SBA completed a page-bypage, line-by-line review of all of its

existing regulations to determine which

might be revised or eliminated. This

rule reorganizes and rewords former

provisions for clarity and userfriendliness. Extensive renumbering was

necessary for reorganization,

simplification and clarification of

existing provisions. No substantive

changes to existing provisions were

made.

SBA published its proposed changes

to Part 142 in the Federal Register on

November 27, 1995 (60 FR 58297),

inviting the public to comment during

a thirty day comment period. Since no

comments were received, SBA has

decided to issue the final rule

substantially as proposed (subject only

to minor typographical corrections).

Compliance With Executive Orders

12612, 12778, and 12866, the

Regulatory Flexibility Act (5 U.S.C. 601,

et seq.), and the Paperwork Reduction

Act (44 U.S.C. Ch. 35)

SBA certifies that this rule does not

have a significant economic impact on

a substantial number of small entities

within the meaning of Executive Order

12866 or the Regulatory Flexibility Act,

5 U.S.C. 601, et seq. This rule

renumbers, reorganizes and rewrites the

existing regulation for clarity and ease

of use. Contracting opportunities and

financial assistance for small business

are not affected by this rule. Therefore,

it is not likely to have an annual

economic effect of $100 million or more,

result in a major increase in costs or

prices, or have a significant adverse

effect on competition or the United

States economy.

For purposes of the Paperwork

Reduction Act, 44 U.S.C. Ch. 35, SBA

certifies that this rule contains no new

reporting or recordkeeping

requirements. For purposes of Executive

Order 12612, SBA certifies that this rule

does not have any federalism

implications warranting the preparation

of a Federalism Assessment. For

purposes of Executive Order 12778,

SBA certifies that this rule is drafted, to

the extent practicable, in accordance

with the standards set forth in Section

2 of that Order.

List of Subjects in 13 CFR Part 142

Administrative practice and

procedure, Claims, Fraud, Penalties.

For the above reasons, SBA revises

Part 142 of Title 13 of the Code of

Federal Regulations to read as follows:

PART 142—PROGRAM FRAUD CIVIL

REMEDIES ACT REGULATIONS

Overview and Definitions

142.1 Overview of regulations.