[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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  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