[Federal Register Volume 75, Number 151 (Friday, August 6, 2010)]
[Rules and Regulations]
[Pages 47435-47444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19401]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 75, No. 151 / Friday, August 6, 2010 / Rules
and Regulations
[[Page 47435]]
SMALL BUSINESS ADMINISTRATION
13 CFR Part 134
RIN 3245-AG09
Rules of Procedure Governing Cases Before the Office of Hearings
and Appeals
AGENCY: U.S. Small Business Administration.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Small Business Administration (SBA or Agency) is
amending its regulations governing appeals before the SBA's Office of
Hearings and Appeals (OHA). OHA is SBA's administrative tribunal, and
these regulations are procedural by nature. These revisions codify
current practices to make them more transparent, and clarify some
existing rules of procedure to make them more understandable
particularly to OHA's many pro se litigants.
DATES: Effective Date: This rule is effective September 20, 2010
without further action, unless significant adverse comment is received
by September 7, 2010. If significant adverse comment is received, SBA
will publish a timely withdrawal of the rule in the Federal Register.
Applicability Date: This rule applies to all appeals filed on or
after the Effective Date.
ADDRESSES: You may submit comments, identified by RIN: 3245-AG09, by
any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail, for paper, disk, or CD/ROM submissions: Delorice
Price Ford, Assistant Administrator for Hearings and Appeals, U.S.
Small Business Administration, Office of Hearings and Appeals, 409
Third Street, SW., Washington, DC 20416.
Hand Delivery/Courier: Delorice Price Ford, Assistant
Administrator for Hearings and Appeals, U.S. Small Business
Administration, Office of Hearings and Appeals, 409 Third Street, SW.,
Washington, DC 20416.
SBA will post all comments on http://www.regulations.gov. If you
wish to submit confidential business information (CBI) as defined in
the User Notice at http://www.Regulations.gov, please submit the
information to Delorice Price Ford, Assistant Administrator for
Hearings and Appeals, U.S. Small Business Administration, Office of
Hearings and Appeals, 409 Third Street, SW., Washington, DC 20416, or
send an e-mail to [email protected]. Highlight the information that
you consider to be CBI and explain why you believe SBA should hold this
information as confidential. SBA will review the information and make
the final determination on whether it will publish the information or
not.
FOR FURTHER INFORMATION CONTACT: Delorice Price Ford, Assistant
Administrator for Hearings and Appeals, at (202) 401-8200 or
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The U.S. Small Business Administration is amending its regulations
governing appeals before the SBA's Office of Hearings and Appeals
(OHA). OHA is SBA's administrative tribunal that provides an
independent, quasi-judicial forum to appeal various types of decisions.
The matters addressed on appeal include: SBA formal size
determinations; contracting officer designations of North American
Industry Classification System (NAICS) codes for procurements
government-wide; certain SBA determinations relating to 8(a) BD program
eligibility, graduation, suspension, and termination; Service-Disabled
Veteran-Owned Small Business Concern status appeals, SBA employee
dispute appeals; and employee salary offsets.
In order to increase transparency and understanding of its appeals
process, SBA is amending its hearings and appeals regulations to codify
current practices, and to clarify certain existing regulations,
particularly for the many pro se litigants who file appeals with OHA.
Some of these revisions change existing procedures; however, we believe
these revisions have minimal impact on the public.
Among other things, these amendments codify OHA's longstanding
practices on access to appeal files and protective orders as well as
its practice of citing its prior decisions as precedent. These
amendments also permit the filing and service of pleadings by e-mail;
limit the number of pages for each appeal petition unless OHA approves
in advance; and clarify the time period for filing an appeal. SBA is
also adding provisions promoting the use of alternative dispute
resolution procedures generally, and a new subpart on SBA employee
dispute resolution procedures.
Consideration of Comments. SBA is publishing this rule as a direct
final rule because it believes that this rule is routine and non-
controversial. This rule merely codifies existing procedures and
clarifies practices that are also purely procedural in nature. Because
this rule affects only the procedural regulations of SBA's Office of
Hearings and Appeals, SBA believes that notice and comment is
unnecessary. Thus, SBA believes there is good cause to bypass notice
and comment and proceed to a direct final rule pursuant to 5 U.S.C.
553(b). SBA believes that this direct final rule will not elicit any
significant adverse comments. However, if such comments are received,
SBA will publish a timely notice of withdrawal in the Federal Register.
II. Section-by-Section Analysis
A. Subpart A
SBA is adding a definition for ``business day'' to Sec. 134.101.
SBA is making several non-substantive revisions to Sec. 134.102 on
OHA's jurisdiction. These revisions include: removing from Sec.
134.102(k) a lengthy definition that also appears in Sec. 134.101;
removing and reserving Sec. 134.102(d), (f), and (m) to conform to the
2009 elimination of OHA appeals of SBA enforcement actions against SBA
lenders, intermediaries, and non-lending technical assistance
providers, 73 FR 75524, Dec. 11, 2008; removing and reserving Sec.
134.102(n) to conform to the 2008 elimination of OHA appeals for Small
Disadvantaged Business determinations, 73 FR 57495, Oct. 3, 2008;
adding to Sec. 134.102(r) a reference to new subpart H and updating
website
[[Page 47436]]
information; and adding to Sec. 134.102(t) a list of the means by
which the Administrator may refer a proceeding to OHA. SBA is removing
and reserving Sec. 134.103, on time periods and deadlines, and placing
these rules in Sec. 134.202(d).
B. Subpart B
SBA is shortening the subpart heading to read ``Subpart B--Rules of
Practice''. Section 134.201 sets out where to locate the rules applying
to specific types of OHA proceedings and how to determine which rule
governs in the event of conflicting rules. SBA is making non-
substantive revisions to this section to list more of the proceedings
to which specific rules apply and to increase clarity.
Section 134.202(a) governs the commencement of cases initiated by a
party other than SBA. The current rule provides a 45-day deadline for
filing an appeal petition and an incomplete list of the types of
proceedings that have different deadlines. SBA is amending Sec.
134.202(a) by replacing the 45-day deadline with a reference to the
regulations governing the specific type of appeal. SBA is also adding a
new rule providing that, where the SBA action or determination being
appealed contains a different time period (or deadline) for filing an
appeal petition than does the applicable regulation, then the longer
time period (or later deadline) governs. Thus, a petitioner will have
the benefit of the longer time period or deadline.
SBA is adding to Sec. 134.202 new paragraph (d) on the calculation
and modification of time periods and deadlines. The new Sec.
134.202(d) provides a clearer explanation of the rules currently at
Sec. 134.103 and a detailed example of how to count days. OHA staff
receive many inquiries on how to count days and where to find this
rule. SBA believes the revisions, example, and relocation to Sec.
134.202(d) will reduce the number of inquiries.
Section 134.203 sets out the components of an appeal petition. SBA
is adding the word ``appeal'' to the section heading, a reference to
Sec. 134.102 in Sec. 134.203(a)(1), and the petitioner's e-mail
address to the requirements of Sec. 134.203(a)(5). SBA is removing
current Sec. 134.203(a)(7) and the second sentence of current Sec.
134.203(b). The provisions in those places are redundant.
New Sec. 134.203(d) will limit an appeal petition to 20 pages
unless prior leave is granted, and requires a table of authorities only
if more than 20 authorities are cited. New Sec. 134.203(d) also
provides additional guidance to petitioners, such as that it is
unnecessary to attach documents already submitted to SBA, because SBA
will submit these directly to OHA.
New Sec. 134.203(e) has the heading, ``Motion for a more definite
appeal petition.'' It revises the regulation currently at Sec.
134.205. Section 134.203(e) will shorten, from 15 to five days, the
time period for the respondent (almost invariably the SBA) to file this
motion; will permit the Judge to order a more definite appeal petition
on his or her own initiative; and will permit the Judge to dismiss an
appeal with prejudice for the petitioner's failure to comply with such
an order. New Sec. 134.203(f) informs petitioners that OHA issues a
Notice and Order after an appeal petition is filed and that, should a
party not receive this document, it should contact OHA.
Section 134.204 concerns the filing and service of pleadings and
other submissions. SBA is amending Sec. 134.204 to include
introductory text stating that a submission requires filing, service,
and a certificate of service. The only substantive change is the
addition of e-mail to the permitted methods of filing and service set
out in Sec. 134.204(a). Revised Sec. 134.204(b) includes OHA's e-mail
address for filings and a reference to 28 U.S.C. 1746, a provision
helpful to parties in preparing exhibits. Current Sec. 134.204(e) has
been moved to Sec. 134.204(c)(4) and revised to include a reference to
the section on protective orders. Section 134.204(d), on the
certificate of service, has been revised for clarity and to accommodate
e-mail service.
SBA is moving current Sec. 134.205 to Sec. 134.203(e), as
discussed above, and replacing Sec. 134.205 with a new section that
has the heading, ``The appeal file, confidential information, and
protective orders.'' New Sec. 134.205 fully states in one place OHA's
longstanding practices involving confidential information and access to
appeal files.
New Sec. 134.205(a) sets out the typical contents of an appeal
file, and Sec. 134.205(b) describes the procedure for a party to file
with OHA pleadings containing the party's own confidential information,
including service of redacted copies on other non-government parties.
New Sec. 134.205(c) explicitly refers members of the public to the
Freedom of Information Act (FOIA), 5 U.S.C. 552, for access to appeal
files. Section 134.205(d) codifies OHA's practice of permitting a party
in a pending appeal to examine and copy its own submissions in the
appeal file, as well as any other information there that would not be
exempt from disclosure under the FOIA. This ``party access'' is a
matter of due process, and parties typically use it to ensure that the
appeal file does contain all of the party's own submissions, including
any sent previously to the SBA office that issued the determination
being appealed.
Section 134.205(e) codifies OHA's longstanding practice of issuing
protective orders that set out the terms under which outside counsel
may have access to all information in a pending appeal file except for
tax returns and privileged information. New Sec. 134.205(f) codifies
OHA's longstanding practice of publishing its decisions even though
these decisions may contain confidential information, and procedures to
request a redacted public decision. The only substantive change from
current practice in new Sec. 134.205 is that OHA's Web site will
contain detailed information on its protective order procedure.
Section 134.206 concerns respondents' pleadings. SBA has made three
revisions to this section. The first removes the last sentence in Sec.
134.206(a)(1), a sentence rendered unnecessary by the addition of
subpart H. The second rewrites Sec. 134.206(b) to codify OHA practices
in cases where the appeal of an SBA determination requires the Agency
to file and serve an administrative record, practices which for many
years have been set out in the initial notice and order. The third adds
Sec. 134.206(e) to codify OHA practice relating to petitioners'
replies to responses.
SBA is amending Sec. 134.207 to include references to Sec.
134.211 and to explicitly state that the Judge, on his or her own
initiative, may order an amendment or a supplemental pleading. SBA is
amending Sec. 134.209 to note that false statements in pleadings are
subject to criminal penalties, and that misconduct is subject to
sanctions, with a reference to Sec. 134.219.
Section 134.211 governs motion practice. SBA is changing two
deadlines in this section. First, the deadline for responses to a
motion, in Sec. 134.211(c), changes from 20 days after service of the
motion to 15 days. The 20-day period for response is much longer than
needed, and can delay the issuance of a decision. Further, a party
needing more time to respond to a motion has the option of moving for
more time under Sec. 134.211(f). Second, the deadline for filing a
motion to extend time, in Sec. 134.211(f), has been changed from ``two
days'' before the original deadline to ``two business days''. This
change will eliminate the uncertainty in counting back days when a
weekend or a Federal holiday is encountered. Other revisions in this
section are to clarify existing procedures.
[[Page 47437]]
SBA is changing the words ``summary decision'' in the heading and
text of Sec. 134.212 to ``summary judgment'', to more accurately
reflect the procedures described therein, and to avoid confusion with
the summary decision set out in Sec. 134.226(a)(3). SBA also is
shortening the deadline, in Sec. 134.212(a), for filing a response to
either the original motion or a cross-motion from the current 20 days
after service to 15 days. A party needing more time to respond may move
for more time under Sec. 134.211(f). New Sec. 134.212(a)(4)
establishes a deadline of 15 days for the respondent to file its answer
or response under Sec. 134.206 in the event the respondent has not yet
made this filing, the Judge denies a motion for summary judgment, and
the Judge does not establish a different deadline. Other revisions to
Sec. 134.212 clarify the rule.
SBA is amending Sec. 134.213(c) by adding a reference to the
section on protective orders. SBA is amending Sec. 134.214, on
subpoenas, by shortening the deadlines related to motions to quash from
10 days to five days; and by removing two unneeded sentences.
Section 134.216 concerns alternative dispute resolution (ADR). SBA
adds two new provisions to this section to further Federal policy
encouraging administrative agencies to use ADR (see 5 U.S.C. 571-572),
and SBA's firm commitment to the greater use of ADR (see 64 FR 27843,
May 21, 1999). The first provision adds new Sec. 134.216(b) to permit
a Judge to offer ADR to the parties. The second provision adds new
Sec. 134.216(c) to permit designation of either a Judge or an OHA
attorney to serve as a neutral in ADR procedures. An OHA-provided
neutral will not be involved in the adjudication if mediation fails to
resolve all issues in a case.
SBA is revising the last sentence of Sec. 134.218(c) to clarify
that a denial of a motion for recusal may be appealed ``within 5 days''
rather than ``immediately''.
SBA is amending Sec. 134.219 to list five sanctions a Judge may
apply for misconduct by a party or its counsel. These sanctions
include: Ordering a pleading or evidentiary filing to be struck from
the record; dismissing an appeal with prejudice; suspending counsel
from practice before OHA; filing a complaint with the applicable State
bar; and taking any other action that is appropriate to further the
administration of justice.
SBA is amending Sec. 134.222, on oral hearings, to delete
paragraph (a)(3), a provision applicable only to administrative wage
garnishment cases, which OHA no longer hears; and to correct
typographical errors in Sec. 134.222(d). SBA is amending Sec. 134.223
to clarify that the weight given to hearsay evidence is at the Judge's
discretion.
SBA is removing and reserving Sec. 134.224, on standards for
decision. The standard for decision is provided in the regulations
pertaining to each specific type of case, and this section causes
confusion. SBA is removing Sec. 134.225(b), on public access to the
record, as unnecessary given its inclusion in Sec. 134.205.
SBA is amending Sec. 134.226(a) to add two new provisions that
codify, in part, existing practices. New Sec. 134.226(a)(2) provides
that all OHA decisions create precedent, unless either a regulation
governing a specific type of appeal provides otherwise, or the Judge
designates a particular decision as not to be cited as precedent. The
practice of citing its prior decisions as precedent has been an
accepted part of OHA's quasi-judicial function since OHA's inception in
1983. SBA believes it appropriate to codify the practice.
New Sec. 134.226(a)(3) permits issuance of an abbreviated version
of a decision where the Judge finds that a full decision would not
advance understanding of law, regulation, or policy and the underlying
facts and law are of a routine and non-complex nature. OHA's
longstanding practice is to issue short decisions and orders dismissing
appeals in appropriate cases, and this rule codifies the practice.
C. Subpart C
SBA makes several changes to subpart C. First, SBA amends Sec.
134.302(b) to correct an SBA official's title. Second, SBA amends Sec.
134.305 to require that a size appeal include a copy of the size
determination being appealed, and to add an e-mail address and fax
number for service to the Associate General Counsel for Procurement
Law. Third, SBA is amending Sec. 134.306(b) to permit a contracting
officer to provide an electronic link to the solicitation in lieu of a
paper copy. Fourth, SBA makes a technical revision to Sec. 134.315 to
conform to a revision made in Sec. 134.225.
Finally, SBA adds new section Sec. 134.318 regarding NAICS
appeals. This section references certain sections of part 121 that
apply to NAICS appeals, clarifies the effect of OHA's decision in a
NAICS appeal, and permits early, summary dismissal of a NAICS appeal in
certain instances to codify current, longstanding practice.
D. Subpart D
SBA amends Sec. 134.403 to permit service of the appeal petition
by e-mail, and to make various editorial revisions.
SBA is also deleting Sec. 134.404 as redundant, and replacing it
with a new section providing a 45-day deadline for filing an 8(a)
appeal. The 45-day deadline does not represent any change, as it is the
default deadline in current Sec. 134.202. Because SBA is revising
Sec. 134.202 to direct parties to the regulations governing specific
appeals, the regulations governing 8(a) appeals will need to contain
the deadline. Thus, it is being added here. SBA is also revising Sec.
134.405 to eliminate the reference to Sec. 134.202 contained there.
In Sec. 134.406, SBA makes revisions to paragraphs (c) and (e).
Section 134.406(c) concerns the content of the administrative record in
8(a) appeals. The revised rule adds a heading to Sec. 134.406(c) and
divides it into paragraphs (c)(1) to (c)(3) for ease of use. The
revised rule also adds one sentence at the end of new paragraph (c)(1)
and two sentences at the end of new paragraph (c)(2) to codify and make
more transparent longstanding practices regarding SBA claims of
privilege and petitioner objections. Section 134.406(e) concerns
remands in 8(a) appeals. The revised rule adds a heading to Sec.
134.406(e) and divides it into paragraphs (e)(1), (e)(2), and (e)(4)
for ease of use. SBA also adds new paragraph (e)(3) to codify the
longstanding practice of remanding an 8(a) appeal where the SBA
determination being appealed raises a new ground not included in the
initial SBA determination. Apart from these revisions, and the
correction of an SBA official's title in paragraph (e)(1), there are no
other changes to the text of Sec. 134.406.
E. Subpart E
SBA is amending Sec. 134.505 to require the appeal petition in
Service-Disabled Veteran-Owned (SDVO) Small Business Concern (SBC)
cases to include a copy of the determination being appealed and the
petitioner's e-mail address. The revisions also provide the e-mail
addresses for the SBA officials whom the petitioner must serve.
F. Subpart F
SBA corrects cross-references in Sec. Sec. 134.601, 134.602,
134.606, and 134.611 to conform with redesignations made to this
subpart in 1998 and 2005. 63 FR 35766, June 30, 1998; 70 FR 8927, Feb.
24, 2005.
[[Page 47438]]
G. Subpart H
SBA is adding Subpart H setting forth the rules of practice for OHA
appeals of SBA Employee Disputes. Subpart H replaces the portions of
Standard Operating Procedure (SOP) 37 71 that deal with OHA appeals,
and codifies several items of longstanding OHA practice.
Compliance With Executive Orders 12866, 12988, 13132, the Paperwork
Reduction Act (44 U.S.C. Ch. 35), and the Regulatory Flexibility Act (5
U.S.C. 601-612)
Executive Order 12866
OMB has determined that this rule does not constitute a
``significant regulatory action'' under Executive Order 12866. This
rule codifies current practices of the SBA's Office of Hearings and
Appeals and clarifies other practice rules. As such, the rule has no
effect on the amount or dollar value of any Federal contract
requirements or of any financial assistance provided through SBA.
Therefore, the rule 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. In addition, this rule does not create a serious inconsistency
or otherwise interfere with an action taken or planned by another
agency, materially alter the budgetary impact of entitlements, grants,
user fees, loan programs or the rights and obligations of such
recipients, nor raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Executive Order 12988
For purposes of Executive Order 12988, SBA has drafted this rule,
to the extent practicable, in accordance with the standards set forth
in section 3(a) and 3(b)(2) of that Order, to minimize litigation,
eliminate ambiguity, and reduce burden. This rule has no preemptive or
retroactive effect.
Executive Order 13132
This rule does not have Federalism implications as defined in
Executive Order 13132. It will not have substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various layers of government, as specified in the Order. As such it
does not warrant the preparation of a Federalism Assessment.
Paperwork Reduction Act
For purposes of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA
has determined that this rule does not impose new reporting or record
keeping requirements.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-12, requires
administrative agencies to consider the effect of their actions on
small entities, small nonprofit enterprises, and small local
governments. Pursuant to the RFA, when an agency issues a rule, the
agency must prepare a regulatory flexibility analysis which describes
the impact of the rule on small entities.
However, section 605 of the RFA allows an agency to certify a rule,
in lieu of preparing an analysis, if the rulemaking is not expected to
have a significant economic impact on a substantial number of small
entities.
This rulemaking addresses the rules of practice governing cases
before the Small Business Administration's (SBA) Office of Hearings and
Appeals (OHA). OHA is SBA's administrative tribunal, and these
regulations are procedural by nature. This rule codifies current
practices to make them more transparent, and clarifies other rules. The
increased clarity and transparency of OHA's procedural rules will
benefit small businesses litigating matters before OHA, especially
those litigating pro se. Few of these revisions change existing
procedures, and those that do have minimal effect on small entities.
Therefore, within the meaning of the RFA, SBA certifies that this
rulemaking will not have a significant economic impact on a substantial
number of small entities because the rulemaking is procedural and
imposes no significant additional requirements on small entities.
List of Subjects in 13 CFR Part 134
Administrative practice and procedure, Organization and functions
(Government agencies).
0
For the reasons stated in the preamble, SBA amends part 134 of title 13
of the Code of Federal Regulations as follows:
PART 134--RULES OF PROCEDURE GOVERNING CASES BEFORE THE OFFICE OF
HEARINGS AND APPEALS
0
1. The authority citation for part 134 continues to read as follows:
Authority: 5 U.S.C. 504; 15 U.S.C. 632, 634(b)(6), 637(a),
637(m), 648(1), 656(i), and 687(c); E.O. 12549, 51 FR 6370, 3 CFR,
1986 Comp., p. 189.
Subpart A--General Rules
0
2. Amend Sec. 134.101 by adding the definition of ``Business day'', to
read as follows:
Sec. 134.101 Definitions.
* * * * *
Business day means any day other than a Saturday, Sunday, or a
Federal holiday.
* * * * *
0
3. Amend Sec. 134.102 by removing and reserving paragraphs (d), (f),
(m), and (n); and by revising paragraphs (k), (r), (s), and (t) to read
as follows:
Sec. 134.102 Jurisdiction of OHA.
* * * * *
(d) [Reserved]
* * * * *
(f) [Reserved]
* * * * *
(k) Appeals from size determinations and NAICS code designations
under part 121 of this chapter;
* * * * *
(m) [Reserved]
(n) [Reserved]
* * * * *
(r) The decision of the Appropriate Management Official in SBA
Employee Dispute Resolution Process cases (Employee Disputes) under
Standard Operating Procedure (SOP) 37 71 (available at http://www.sba.gov/tools/resourcelibrary/sops/index.html or through OHA's Web
site http://www.sba.gov/oha) and subpart H of this part;
(s) Appeals from Women-Owned Small Business or Economically-
Disadvantaged Women-Owned Small Business protest determinations under
part 127 of this chapter; and
(t) Any other hearing, determination, or appeal proceeding referred
to OHA by the Administrator of SBA, either through an SOP, Directive,
Procedural Notice, or individual request by the Administrator to the
AA/OHA.
Sec. 134.103 [Removed and Reserved]
0
4. Remove and reserve Sec. 134.103.
0
5. Revise the heading for subpart B to read as follows:
Subpart B--Rules of Practice
0
6. Revise Sec. 134.201 to read as follows:
Sec. 134.201 Scope of the rules in this subpart B.
(a) The rules of practice in this subpart apply to all OHA
proceedings except:
(1) Where another subpart of this part, pertaining to a specific
type of OHA proceeding, provides a different rule; or
[[Page 47439]]
(2) Where another part of this chapter, pertaining to a specific
type of OHA proceeding (or SBA program allowing appeals to OHA),
provides a different rule (see Sec. 134.102).
(b) For specific types of OHA proceedings, the rules of practice
are located as follows:
(1) For appeals from size determinations and NAICS code
designations, in subpart C of this part (Sec. 134.301 et seq.);
(2) For 8(a) BD appeals, in subpart D of this part (Sec. 134.401
et seq.);
(3) For appeals from Service-Disabled Veteran-Owned Small Business
Concern protest determinations, in subpart E of this part (Sec.
134.501 et seq.);
(4) For applications under the Equal Access to Justice Act, in
subpart F of this part (Sec. 134.601 et seq.);
(5) For appeals from Women-Owned Small Business (WOSB) and
Economically-Disadvantaged WOSB protest determinations, in subpart G of
this part (Sec. 134.701 et seq.);
(6) For appeals relating to SBA employee disputes, in subpart H of
this part (Sec. 134.801 et seq.); and
(7) For proceedings under the Program Fraud Civil Remedies Act, in
part 142 of this chapter.
(c) If a rule in this subpart conflicts with a rule pertaining to
OHA in another subpart of this part or in another part of this chapter,
the latter rule shall govern.
0
7. Amend Sec. 134.202 by revising paragraph (a) and by adding new
paragraph (d), to read as follows:
Sec. 134.202 Commencement of cases.
(a) A party other than the SBA may commence a case by filing an
appeal petition.
(1) The filing deadline is contained in the SBA regulations
governing the specific type of appeal.
(2) Where the SBA action or determination being appealed states a
different time period (or deadline) for filing an appeal petition than
does the applicable regulation, the longer time period (or later
deadline) governs.
* * * * *
(d) Calculation and modification of time periods and deadlines. (1)
Calculation of a deadline when the time period is given in days. (i) Do
not count the day the time period begins, but do count the last day of
the time period.
(ii) If the last day is Saturday, Sunday, or a Federal holiday, the
time period ends on the next business day.
Example: On Monday, a Judge orders a party to file and serve a
document within (or no later than) five days. The time period begins
on Monday, so the first day to count is Tuesday. The second, third,
and fourth days are Wednesday, Thursday, and Friday. The fifth day
is Saturday, so the time period rolls over to the next business day,
which is Monday. The deadline is Monday (or Tuesday if Monday is a
Federal holiday).
(2) Modification of a time period or deadline. (i) A Judge may
modify any time period or deadline, except:
(A) The time period governing commencement of a case (i.e., when
the appeal petition may be filed); and
(B) A time period established by statute.
(ii) A party may move for an extension of time pursuant to Sec.
134.211.
0
8. Amend Sec. 134.203 as follows:
0
a. Revise the section heading;
0
b. Revise paragraphs (a) and (b); and
0
c. Add new paragraphs (d), (e), and (f).
Sec. 134.203 The appeal petition.
(a) A petition must contain the following:
(1) The basis of OHA's jurisdiction (see Sec. 134.102);
(2) A copy of the SBA determination being appealed, if applicable,
and the date the determination was received by the petitioner;
(3) A clear and concise statement of the factual basis of the case
and applicable legal arguments;
(4) The relief being sought;
(5) The name, address, telephone number, facsimile number, e-mail
address, and signature of the petitioner or its attorney; and
(6) A certificate of service (see Sec. 134.204(d)).
(b) If the applicable subpart of this part 134 (or the program
regulations) requires other documents or information with the appeal
petition, these must also be included.
* * * * *
(d) Format. (1) An appeal petition should be on 8.5'' x 11'' paper
with a clear type at least 12 point in size. Preferably, double-space
the main text and use 1'' margins all around. Number each page. A
separate cover letter is not needed. A table of contents is optional.
Hard copies of documents sent by facsimile or electronic mail are not
needed unless specifically requested.
(2) The maximum length of an appeal petition (not including
attachments) is 20 pages, unless prior leave is sought by the
petitioner and granted by the Judge. A table of authorities is required
only for petitions citing more than twenty cases, regulations, or
statutes.
(3) Clearly label any exhibits and attachments. Do not include
documents already submitted to SBA in connection with the matter being
appealed. SBA will submit these directly to OHA.
(e) Motion for a more definite appeal petition. A respondent, SBA,
or a contracting officer (for NAICS appeals) may, not later than five
days after receiving a petition, move for an order to the petitioner to
provide a more definite appeal petition or otherwise comply with this
section. A Judge may order a more definite appeal petition on his or
her own initiative.
(1) A motion for a more definite appeal petition stays the
respondent's time for filing an answer or response. The Judge will
establish the time for filing and serving an answer or response.
(2) If the petitioner does not comply with the Judge's order to
provide a more definite appeal petition or otherwise fails to comply
with applicable regulations, the Judge may dismiss the petition with
prejudice.
(f) Notice and Order. After an appeal petition is filed, OHA will
issue a Notice and Order and serve it upon all known parties (or their
attorneys). If a party does not receive a Notice and Order, it should
contact OHA.
0
9. Revise Sec. 134.204 to read as follows:
Sec. 134.204 Filing and service requirements.
All pleadings or other submissions must be filed with OHA and
served on all other parties or their attorneys. Each submission
requires a certificate of service.
(a) Methods of filing and service. E-mail, mail, delivery, and
facsimile are all permitted unless a Judge orders otherwise.
(1) E-mail constitutes any system for sending and receiving
messages electronically over a telecommunications network. The sender
is responsible for ensuring that e-mail software and file formats are
compatible with the recipient and for a successful, virus-free
transmission.
(2) Mail includes any service provided by the U.S. Postal Service.
Mail (except ``Express Mail'') is not recommended for time-sensitive
filings.
(3) Delivery is personal delivery by a party, its employee, its
attorney, or a commercial delivery service.
(4) Facsimile submissions should not exceed 30 pages. Contact OHA
before faxing longer submissions. Follow-up originals or ``hard
copies'' are not required unless OHA or another party specifically
requests them.
(b) Filing. Filing is the receipt of pleadings and other
submissions at OHA. Filers may call OHA to verify receipt. OHA's
telephone number is (202) 401-8200.
(1) OHA's address. OHA accepts filings: by e-mail at
[email protected]; by mail or delivery at Office of Hearings and
Appeals, U.S. Small Business
[[Page 47440]]
Administration, 409 Third Street, SW., Washington, DC 20416; and by
facsimile at (202) 205-7059.
(2) The date of filing is the date the submission is received at
OHA. Any submission received at OHA after 5 p.m. eastern time is
considered filed the next business day.
(3) Exhibits. An exhibit, whether an original or a copy, must be
authenticated or identified to be what it purports to be. Parties are
referred to 28 U.S.C. 1746.
(4) Copies. No extra copies of pleadings or other submissions need
be filed. If a document is offered as an exhibit, a copy of the
document will be accepted by the Judge unless--
(i) a genuine question is raised as to whether it is a true and
accurate copy; or
(ii) it would be unfair, under the circumstances, to admit the copy
instead of the original.
(c) Service. Service means sending a copy of a pleading or other
submission filed with OHA to another party.
(1) Complete copies of all pleadings and other submissions filed
with OHA must be served upon all other parties or, if represented,
their attorneys, at their record addresses.
(2) The date of service is as follows: for e-mail and facsimile,
the date the copy is sent; for personal delivery, the date the copy is
given to the party, its attorney, or the commercial delivery service
(if one is used). For mail, date of service is postmark date; in
absence of a legible postmark, there is a rebuttable presumption that
the copy was mailed five days before the served party's receipt.
(3) SBA address. The correct office(s) of SBA must be served, as
required by the applicable program regulations, by other subparts of
part 134, or by the instructions on the SBA determination being
appealed. If the SBA office for service is not specified elsewhere,
serve: Office of General Counsel, U.S. Small Business Administration,
409 Third Street, SW., Washington, DC 20416.
(4) Confidential information. If a pleading or other submission
contains proprietary or confidential information, that information may
be redacted (deleted) from any copies served upon non-government
parties. Counsel for those parties may access the redacted information
only under the protective order procedure described in Sec. 134.205.
(d) Certificate of service. A certificate of service shows how,
when, and to whom service was made. Each submission to OHA must include
a certificate of service. The certificate should state: ``I certify
that on [date], I served the foregoing [type of submission] by [e-mail,
mail, Express Mail, personal delivery, commercial delivery service,
facsimile] upon the following''. List the name and address of each
party served, and either the facsimile number or the e-mail address (if
applicable). The individual serving the submission must sign the
certificate and either print or type his or her name and title.
0
10. Revise Sec. 134.205 to read as follows:
Sec. 134.205 The appeal file, confidential information, and
protective orders.
(a) The appeal file. The appeal file includes: all pleadings and
other submissions; all admitted evidence; any recordings and
transcripts of proceedings; the solicitation and amendments; in the
case of an appeal of an SBA determination, the entire record on which
that determination was based (i.e., the administrative record, protest
file, area office file); and any orders and decisions that have been
issued.
(b) Confidential business and financial information. An appeal file
usually contains confidential business and financial information
pertaining to the party whose eligibility (as a small business, SDVO
SBC, etc.) is at issue. A party may redact its own confidential
business and financial information from the copies of its submissions
it must serve on other non-government parties (usually protesters). A
party served with redacted submissions must file and serve any
objections to the redactions within two business days of its receipt of
the submissions. The Judge then will rule on the objections and, if
necessary, order the service of revised submissions.
(c) Public access. Except for confidential business and financial
information, source selection sensitive information, income tax
returns, and other exempt information, the appeal file is available to
the public pursuant to the Freedom of Information Act (FOIA), 5 U.S.C.
552.
(d) Party access. A party in a pending appeal may examine and copy
the party's own submissions as well as any information in the appeal
file that is not exempt from disclosure under the FOIA. Party access to
the appeal file in a pending appeal does not require a FOIA request or
a protective order.
(e) Counsel's access under a protective order. On request, OHA will
issue a protective order under which outside counsel for a non-
government party in a pending appeal may be admitted, to examine and
copy the appeal file (except for tax returns and privileged
information). The protective order will set out the terms to which
counsel must agree. The terms will restrict counsel's use of the
protected information to the pending appeal and will prohibit any
further disclosure. Violations of the terms of a protective order may
result in sanctions to the party and referral of the attorney to bar
disciplinary authorities. OHA's Web site contains detailed information
on the protective order procedure.
(f) Decisions. OHA decisions are normally published without
redactions on OHA's Web site. A decision may contain confidential
business and financial information where that information is either
decisionally-significant or otherwise necessary for a comprehensible
decision. Where no protective order is in place, a party may request a
redacted public decision by contacting OHA. Where a protective order is
in place, the Judge will usually issue the unredacted decision under
the protective order and then a redacted version for public release.
0
11. Amend Sec. 134.206 by removing the last sentence of paragraph
(a)(1); by revising paragraph (b); and by adding new paragraph (e) to
read as follows:
Sec. 134.206 The answer or response.
* * * * *
(b) Appeal of an SBA determination. (1) Notice and order. Upon the
filing of an appeal petition, OHA will issue a notice and order
informing all known parties of the appeal petition and the deadline for
filing and serving any responses to the appeal. The SBA response is due
45 days after the date the appeal petition is filed, unless a rule
governing the particular type of appeal provides a different deadline.
(2) SBA response. If SBA is the respondent, SBA need not admit or
deny the allegations in the petition, but must set forth the relevant
facts and the legal arguments in support of SBA's determination.
(3) Administrative record. If SBA is to file and serve an
authenticated copy of the administrative record (or protest file), the
notice and order will provide further instructions.
(4) Claim of privilege. If SBA asserts a claim of privilege over
any portion of the administrative record, SBA must serve the petitioner
a redacted version, accompanied by a ``Vaughn Index'' describing each
withheld item and justifying each claim of privilege. SBA also must
file an unredacted copy for in camera inspection by the Judge. The
Judge will afford the petitioner an opportunity to object to the
administrative record and to challenge any claim of privilege asserted
by SBA.
* * * * *
(e) Reply. A reply to a response is not permitted unless the Judge,
upon
[[Page 47441]]
motion or on his or her own initiative, orders a reply to be filed and
served. A party moving for leave to reply should file and serve the
proposed reply with its motion.
0
12. Amend Sec. 134.207 as follows:
0
a. In paragraph (a), revise the first sentence and add a new sentence
at the end; and
0
b. In paragraph (b), revise the first sentence and add a new sentence
at the end.
Sec. 134.207 Amendments and supplemental pleadings.
(a) * * * Upon motion (see Sec. 134.211), and under terms needed
to avoid prejudice to any non-moving party, the Judge may permit the
filing and service of amendments to pleadings. * * * The Judge, on his
or her own initiative, may order a party to file and serve an amendment
to a pleading.
(b) * * * Upon motion (see Sec. 134.211), and under terms needed
to avoid prejudice to any non-moving party, the Judge may permit the
filing and service of a supplemental pleading setting forth relevant
transactions or occurrences that have taken place since the filing of
the original pleading. * * * The Judge, on his or her own initiative,
may order a party to file and serve a supplemental pleading.
* * * * *
0
13. In Sec. 134.209, add two sentences at the end, to read as follows:
Sec. 134.209 Requirement of signature.
* * * False statements are subject to criminal penalties. Any
misconduct is subject to sanctions (see Sec. 134.219).
0
14. Amend Sec. 134.211 as follows:
0
a. In paragraph (a), add a new sentence at the end;
0
b. Revise paragraph (c);
0
c. In paragraph (e), revise the second sentence and remove the third
sentence; and
0
d. In paragraph (f), add the word ``business'' after the word ``two''.
Sec. 134.211 Motions.
(a) * * * A motion must be filed, served, and accompanied by a
certificate of service (see Sec. 134.204).
* * * * *
(c) Response. All non-moving parties must file and serve a response
to the motion or be deemed to have consented to the relief sought. The
response is due no later than 15 days after the motion is served,
unless the Judge sets a different deadline. On motion, or on his or her
own initiative, the Judge may permit a reply to a response and/or oral
argument on the motion.
* * * * *
(e) * * * If an answer or response to the appeal petition has not
yet been filed, the motion to dismiss stays the respondent's time to
answer or respond.
(f) Motion for an extension of time. Except for good cause shown, a
motion for an extension of time must be filed at least two business
days before the original deadline.
0
15. Revise Sec. 134.212 to read as follows:
Sec. 134.212 Summary judgment.
(a) On motion by a party. At any time before the close of record, a
party may move for summary judgment 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.
(1) Contents of motion. The motion must include a statement of the
material facts believed to be undisputed and the party's legal
arguments. The motion may include supporting statements in accordance
with 28 U.S.C. 1746. The motion must be filed, served, and accompanied
by a certificate of service (see Sec. 134.204).
(2) Response. No later than 15 days after the service of a motion
for summary judgment, all non-moving parties must file and serve a
response to the motion or be deemed to have consented to the motion for
summary judgment.
(3) Cross-motions. In its response to a motion for summary
judgment, a party may cross-move for summary judgment. The initial
moving party must file and serve a response to any cross-motion for
summary judgment within 15 days after the service of that cross-motion
or be deemed to have consented to the cross-motion for summary
judgment.
(4) Stay. If an answer or response to the appeal petition has not
yet been filed, the motion for summary judgment stays the respondent's
time to answer or respond. If the Judge denies the motion and an answer
or response has not yet been filed, the respondent must file the answer
or response within 15 days after the order deciding the motion unless
otherwise ordered by the Judge.
(b) On the Judge's own initiative. The Judge may issue an order
granting summary judgment as to all or any portion of the case in
absence of a motion if there is no genuine issue to any material fact,
and a party is entitled to a decision in its favor as a matter of law.
(c) Appeal of an SBA determination. If the SBA determination being
appealed was based on multiple grounds, SBA may move for summary
judgment on one or more of those grounds. If the Judge finds, as to any
ground, that there is no genuine issue of material fact and that the
SBA is entitled to a decision in its favor as a matter of law, the
Judge will grant the motion for summary judgment and dismiss the rest
of the appeal.
Sec. 134.213 [Amended]
0
16. In Sec. 134.213, paragraph (c), add the words ``(see Sec.
134.205)'' after the words ``protective order''.
0
17. Amend Sec. 134.214 by revising paragraphs (a) and (b) to read as
follows:
Sec. 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 a witness to appear
and testify, or to produce particular documents, at a specified time
and place.
* * * * *
(d) Motion to quash. A motion to limit or quash a subpoena must be
filed and served within 5 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 filed and served within 5 days after service of
the motion, unless a shorter time is specified by the Judge.
0
18. Amend Sec. 134.216 as follows:
0
a. Designate the existing text as paragraph (a); and
0
b. Add new paragraphs (b) and (c).
Sec. 134.216 Alternative dispute resolution procedures.
* * * * *
(b) A Judge may offer alternative dispute resolution procedures to
the parties at any time during the proceeding.
(c) The AA/OHA or a Judge may designate a Judge or attorney
assigned to OHA to serve as a neutral in alternative dispute resolution
procedures. If OHA provides the neutral and the mediation fails to
resolve all issues in the case, the OHA-provided neutral will not be
involved in the adjudication.
0
19. Amend Sec. 134.218 by revising the last sentence of paragraph (c),
to read as follows:
Sec. 134.218 Judges.
* * * * *
(c) * * * A denial of a motion for recusal may be appealed within 5
days 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.
0
20. Revise Sec. 134.219 to read as follows:
[[Page 47442]]
Sec. 134.219 Sanctions.
(a) 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:
(1) Fails to comply with an order of the Judge;
(2) Fails to comply with the rules set forth in this part;
(3) Acts in bad faith or for purposes of delay or harassment;
(4) Submits false statements knowingly, recklessly, or with
deliberate disregard for the truth; or
(5) Otherwise acts in an unethical or disruptive manner.
(b) Appropriate sanctions may include:
(1) Ordering a pleading or evidentiary filing to be struck from the
record;
(2) Dismissing an appeal with prejudice;
(3) Suspending counsel from practice before OHA;
(4) Filing a complaint with the applicable State bar; and
(5) Taking any other action that is appropriate to further the
administration of justice.
0
21. Amend Sec. 134.222 by removing paragraph (a)(3) and revising
paragraph (d).
The revisions read as follows:
Sec. 134.222 Oral hearing.
* * * * *
(d) Payment of subpoenaed witnesses. A party who obtains a
witness's 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.
* * * * *
0
22. Amend Sec. 134.223 by adding a new sentence at the end of
paragraph (b), to read as follows:
Sec. 134.223 Evidence.
* * * * *
(b) * * * Weight to be afforded hearsay evidence is at the
discretion of the Judge.
Sec. 134.224 [Removed and Reserved]
0
23. Remove and reserve Sec. 134.224.
Sec. 134.225 [Amended]
0
24. Amend Sec. 134.225 by removing paragraph (b) and by redesignating
paragraph (c) as paragraph (b).
0
25. Amend Sec. 134.226 by revising paragraph (a), to read as follows:
Sec. 134.226 The decision.
(a) Contents. (1) Following close of record, the Judge will issue a
decision containing findings of fact and conclusions of law, the
reasons for such findings and conclusions, and any relief ordered. The
record will constitute the exclusive basis for a decision.
(2) An OHA decision creates precedent, unless:
(i) Another regulation in this chapter applicable to a specific
type of appeal provides that the OHA decision does not create
precedent; or
(ii) the decision is designated as one not to be cited as
precedent.
(3) A summary decision containing only cursory findings of fact and
conclusions of law may be issued only if the Judge finds a full
decision will not advance understanding of Federal statutes or
applicable regulations, policies, or procedures and the underlying
facts and law are of a routine and non-complex nature.
* * * * *
Subpart C--Rules of Practice for Appeals From Size Determinations
and NAICS Code Designations
Sec. 134.302 [Amended]
0
26. Amend Sec. 134.302(b) by removing the words ``Associate
Administrator for Business Development'' and by adding, in their place,
the words ``Director, Office of Business Development''.
0
27. Amend Sec. 134.305 by revising paragraphs (a)(1), (b)(5), and (c),
to read as follows:
Sec. 134.305 The appeal petition.
(a) * * *
(1) In a size appeal, a copy of the size determination being
appealed;
* * * * *
(b) * * *
(5) SBA's Office of General Counsel, Associate General Counsel for
Procurement Law, 409 Third Street, SW., Washington, DC 20416, facsimile
(202) 205-6873, or e-mail at [email protected].
(c) Service of NAICS appeals. The appellant must serve:
(1) The contracting officer who made the NAICS code designation;
and
(2) SBA's Office of General Counsel, Associate General Counsel for
Procurement Law, 409 Third Street, SW., Washington, DC 20416, facsimile
(202) 205-6873, or e-mail at [email protected].
* * * * *
Sec. 134.306 [Amended]
0
28. In Sec. 134.306, paragraph (b), after the words ``send to OHA'',
add the words ``an electronic link to or''.
0
29. Amend Sec. 134.315 by revising the first sentence to read as
follows:
Sec. 134.315 The record.
Where relevant, the provisions of Sec. 134.225 apply. * * *
0
30. Add Sec. 134.318, to read as follows:
Sec. 134.318 NAICS appeals.
(a) The regulations at Sec. Sec. 121.402, 121.1102, and 121.1103
of this chapter also apply to NAICS code appeals.
(b) Effect of OHA's decision. If OHA grants the appeal (changes the
NAICS code), and the contracting officer receives OHA's decision by the
date offers are due, the contracting officer must amend the
solicitation to reflect the new NAICS code. If the contracting officer
receives OHA's decision after the date offers are due, OHA's decision
will not apply to the pending procurement, but will apply to future
solicitations for the same supplies or services.
(c) Summary dismissal. OHA may summarily dismiss a NAICS appeal
either on the Judge's own initiative or on motion by a party. A summary
dismissal may be with or without prejudice, and may be issued before
the date set for close of record. Grounds for summary dismissal
include: premature appeal, withdrawn appeal, settlement, cancellation
of the procurement, and contract award.
Subpart D--Rules of Practice for Appeals Under the 8(a) Program
0
31. Revise Sec. 134.403 to read as follows:
Sec. 134.403 Service of appeal petition.
Concurrent with its filing with OHA, the petitioner also must serve
separate copies of the petition, including attachments, on two SBA
officials.
(a) All 8(a) appeals must be served to: Director, Office of
Business Development, U.S. Small Business Administration, 409 Third
Street, SW., Washington, DC 20416, facsimile (202) 205-5206, or e-mail
at [email protected].
(b)(1) Appeals of early graduation or termination also must be
served to: Associate General Counsel for Litigation, U.S. Small
Business Administration, 409 Third Street, SW., Washington, DC 20416,
facsimile (202) 205-7415, or e-mail at [email protected].
(2) Appeals of denial of program admission, suspension of program
assistance, or denial of a request for waiver also must be served to:
Associate General Counsel for Procurement Law, U.S. Small Business
Administration, 409 Third Street, SW., Washington, DC 20416, facsimile
(202) 205-6873, or e-mail at [email protected].
0
32. Revise Sec. 134.404 to read as follows:
[[Page 47443]]
Sec. 134.404 Deadline for filing appeal petition.
An 8(a) appeal petition must be filed within 45 calendar days after
receipt of the SBA determination being appealed.
Sec. 134.405 [Amended]
0
33. In Sec. 134.405, paragraph (a)(2), remove the words ``under Sec.
134.202''.
0
34. Amend Sec. 134.406 by revising paragraphs (c) and (e) to read as
follows:
Sec. 134.406 Review of the administrative record.
* * * * *
(c) The administrative record. (1) The administrative record must
contain all documents that are relevant to the determination on appeal
before the Administrative Law Judge and upon which the SBA decision-
maker, and those SBA officials that recommended either for or against
the decision, relied. The administrative record, however, need not
contain all documents pertaining to the petitioner. For example, the
administrative record in a termination proceeding need not include the
Participant's entire business plan file, documents pertaining to
specific 8(a) contracts, or the firm's application for participation in
the 8(a) BD program if they are unrelated to the termination action.
The SBA may claim privilege as to certain materials.
(2) The petitioner may object to the absence of a document,
previously submitted to, or sent by, SBA, which the petitioner believes
was erroneously omitted from the administrative record. The petitioner
also may object to a claim of privilege made by the SBA. The
petitioner's objections must be filed and served no later than 10 days
of its receipt of the administrative record.
(3) In the absence of any objection by the petitioner or a finding
by the Judge pursuant to paragraph (e) of this section that the record
is insufficiently complete to decide whether the determination was
arbitrary, capricious, or contrary to law, the administrative record
submitted by SBA shall be deemed complete.
* * * * *
(e) Remand. (1) The Administrative Law Judge may remand a case to
the Director, Office of Business Development (or, in the case of a
denial of a request for waiver under Sec. 124.515 of this chapter, to
the Administrator) for further consideration if he or she determines
that, due to the absence in the written administrative record of the
reasons upon which the determination was based, the administrative
record is insufficiently complete to decide whether the determination
is arbitrary, capricious, or contrary to law. In the event of such a
remand, the Judge will not require the SBA to supplement the
administrative record other than to supply the reason or reasons for
the determination and any documents submitted to, or considered by, SBA
in connection with any reconsideration permitted by regulation that
occurs during the remand period. After such a remand, in the event the
Judge finds that the reasons upon which the determination is based are
absent from any supplemented record, the Judge will find the SBA
determination to be arbitrary, capricious, or contrary to law.
(2) The Administrative Law Judge may also remand a case to the
Director, Office of Business Development (or, in the case of a denial
of a request for waiver under Sec. 124.515 of this chapter, to the
Administrator) for further consideration where it is clearly apparent
from the record that SBA made an erroneous factual finding (e.g., SBA
double counted an asset of an individual claiming disadvantaged status)
or a mistake of law (e.g., SBA applied the wrong regulatory provision
in evaluating the case).
(3) The Administrative Law Judge may remand an eligibility, early
graduation, or termination appeal to the Director, Office of Business
Development, where the determination raises a new ground that was not
in the initial SBA determination.
(4) A remand under this section will be for a reasonable period.
Subpart E--Rules of Practice for Appeals From Service-Disabled
Veteran Owned Small Business Concern Protests
0
35. Amend Sec. 134.505 by revising paragraphs (a)(2), (a)(4), (b)(1),
and (b)(4) to read as follows:
Sec. 134.505 What are the requirements for an appeal petition?
(a) * * *
(2) A statement that the petition is appealing an SDVO SBC protest
determination issued by the D/GC, a copy of the protest determination
being appealed, and the date the petitioner received the SDVO SBC
protest determination;
* * * * *
(4) The name, address, telephone number, facsimile number, e-mail
address, and signature of the appellant or its attorney.
(b) * * *
(1) Director, Office of Government Contracting, U.S. Small Business
Administration, 409 Third Street, SW., Washington, DC 20416, facsimile
(202) 205-6390;
* * * * *
(4) Associate General Counsel for Procurement Law, U.S. Small
Business Administration, 409 Third Street, SW., Washington, DC 20416,
facsimile (202) 205-6873, or e-mail at [email protected].
* * * * *
Subpart F--Implementation of the Equal Access to Justice Act
Sec. 134.601 [Amended]
0
36. In Sec. 134.601 remove ``134.405(b)'' and add in its place
``134.605(b)''.
Sec. 134.602 [Amended]
0
37. In Sec. 134.602, in the introductory text, remove ``134.406'' and
add in its place ``134.606''; and in paragraph (a), by remove
``134.403'' and add in its place ``134.603''.
Sec. 134.606 [Amended]
0
38. In Sec. 134.606, paragraph (a)(4), remove ``134.407'' and add in
its place ``134.607''.
Sec. 134.611 [Amended]
0
39. In Sec. 134.611, paragraph (a)(7), remove ``134.408'' and add in
its place ``134.608''.
0
40. Add a new subpart H to read:
Subpart H--Rules of Practice for Employee Disputes
Sec.
134.801 Scope of rules.
134.802 [Reserved]
134.803 Commencement of appeals from AMO decisions.
134.804 The appeal petition.
134.805 After the appeal petition is filed.
134.806 Mediation.
134.807 SBA response.
134.808 The decision.
134.809 Review of initial decision.
Sec. 134.801 Scope of rules.
(a) The rules of practice in this subpart H apply to the OHA appeal
under the Employee Dispute Resolution Process (EDRP). Standard
Operating Procedure (SOP) 37 71 sets out the EDRP. It is available at
http://www.sba.gov/tools/resourcelibrary/sops/index.html or through
OHA's Web site http://www.sba.gov/oha).
(b) The following rules, located in subparts A and B of this part,
also apply to OHA appeals under the EDRP:
(1) Definitions (Sec. 134.101);
(2) Jurisdiction of OHA (Sec. 134.102(r) only);
(3) Scope of the rules in this subpart B (Sec. 134.201(a), (b)(6),
and (c) only);
[[Page 47444]]
(4) Commencement of cases (Sec. 134.202(d) only, on deadlines and
how to count days);
(5) Filing and service requirements (Sec. 134.204);
(6) Amendments and supplemental pleadings (Sec. 134.207);
(7) Requirement of signature (Sec. 134.209);
(8) Motions (Sec. 134.211);
(9) Summary decision (Sec. 134.212);
(10) Sanctions (Sec. 134.219); and
(11) Review of initial decisions (Sec. 134.228).
Sec. 134.802 [Reserved]
Sec. 134.803 Commencement of appeals from AMO decisions.
(a) An appeal from an AMO decision must be commenced by filing an
appeal petition within 15 days from the date the Employee receives the
AMO's decision.
(b) If the AMO does not issue a decision, the appeal petition must
be filed no sooner than 16 days and no later than 55 days from the date
on which the Employee filed the original Statement of Dispute with the
AMO.
(c) The rule for counting days is in Sec. 134.202(d).
(d) OHA will dismiss an untimely appeal.
Sec. 134.804 The appeal petition.
(a) Form. There is no required format for an appeal petition.
However, it must include the following:
(1) A copy of the original Statement of Dispute;
(2) A copy of the AMO's decision or other response, if any;
(3) Statement of why the AMO's decision is alleged to be in error;
(4) Any other pertinent information the OHA Judge should consider;
(5) A request for mediation, if applicable;
(6) The Employee's name, home mailing address, daytime telephone
and facsimile numbers, e-mail address, and signature; and
(7) If represented by an attorney, the attorney's contact
information and signature.
(b) Service of the appeal petition upon the SBA. The Employee must
serve copies of the entire appeal petition upon three SBA officials:
(1) The AMO;
(2) Chief Human Capital Officer, U.S. Small Business
Administration, 409 Third Street, SW., Washington, DC 20416; and
(3) Associate General Counsel for General Law, U.S. Small Business
Administration, 409 Third Street, SW., Washington, DC 20416, e-mail:
[email protected], except that an employee of the Office of Inspector
General (OIG) must serve it upon the Counsel to the Inspector General,
U.S. Small Business Administration, 409 Third Street, SW., Washington,
DC 20416, e-mail: [email protected].
(c) Certificate of Service. The Employee will attach to the appeal
petition a signed certificate of service meeting the requirements of
Sec. 134.204(d).
(d) The rules governing filing and service are in Sec. 134.204.
(e) Dismissal. An appeal petition that does not meet all the
requirements of this section may be dismissed by the Judge at his or
her own initiative or upon motion of the SBA.
Sec. 134.805 After the appeal petition is filed.
(a) The AA/OHA will assign a Judge to adjudicate the case. If
mediation is requested or offered, the AA/OHA will assign a different
person to mediate the case.
(b) OHA will issue and serve upon the Employee and the SBA a notice
and order informing the parties that an appeal has been filed, and
setting the date for SBA's response and the close of record.
(c) The rules for amendments to pleadings and supplemental
pleadings are in Sec. 134.207.
(d) Unless otherwise instructed, OHA will serve all orders and the
decision by U.S. Mail upon the Employee at his or her home address, or
upon the attorney if represented by an attorney.
Sec. 134.806 Mediation.
Either the Employee or the SBA may request mediation, or OHA may
offer mediation. OHA may designate a Judge or an OHA attorney to serve
as a mediator. If the parties reach a settlement through mediation,
they may file a joint motion to dismiss the appeal based on that
settlement. If the parties do not reach a settlement, the mediation
will conclude and the appeal will go to adjudication. An OHA-provided
mediator will not be involved in a subsequent adjudication.
Sec. 134.807 SBA response.
(a) If the appeal goes to adjudication, SBA will file and serve the
SBA's response to the appeal and a copy of the Dispute File.
(b) Unless the Judge orders a different date (either on his or her
own initiative or on motion by a party), the SBA must file any response
to the appeal petition no later than 15 days from the conclusion of
mediation or 45 days from the filing of the appeal petition, whichever
is later.
(c) The SBA's response and the Dispute File are normally the last
submissions in an appeal, although the Judge may order or permit
additional submissions. If a party wishes to file an additional
submission, the party must file and serve a motion (see Sec. 134.211)
accompanied by the proposed submission.
Sec. 134.808 The decision.
(a) The Judge will decide the appeal within 45 calendar days (if
practicable) from close of record. The decision will affirm, modify,
remand, or reverse the AMO's decision.
(b) The standard of review and burden of proof will be determined
by the specific issue presented.
(c) OHA's decision is an initial decision which becomes the final
decision of the SBA 30 calendar days after issuance, unless a party
files a request for review pursuant to Sec. 134.809.
(d) OHA's decision is not precedential and it will not be
published.
Sec. 134.809 Review of initial decision.
The Request for Review (RFR) process is the same as in Sec.
134.228 except that, for OIG employees:
(a) The RFR must be served on the Counsel to the Inspector General
rather than on the Associate General Counsel for General Law; and
(b) The deciding official is the Inspector General (or designee)
rather than the Administrator.
Dated: July 30, 2010.
Karen G. Mills,
Administrator.
[FR Doc. 2010-19401 Filed 8-5-10; 8:45 am]
BILLING CODE 8025-01-P