[Federal Register Volume 85, Number 195 (Wednesday, October 7, 2020)]
[Rules and Regulations]
[Pages 63191-63193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19567]



13 CFR Part 134

RIN 3245-AH01

Regulatory Reform Initiative: Rules of Procedure Governing Cases 
Before the Office of Hearings and Appeals

AGENCY: U.S. Small Business Administration.

ACTION: Final rule.


SUMMARY: With this deregulatory action, the U.S. Small Business 
Administration (SBA) is revising regulations regarding rules of 
procedure governing cases before the Office of Hearings and Appeals 
(OHA) to remove an unnecessary regulatory provision and to clarify an 
existing rule of procedure.

DATES: This rule is effective November 6, 2020.

FOR FURTHER INFORMATION CONTACT: Delorice Price Ford, Assistant 
Administrator, Office of Hearings and Appeals, (202) 401-8200 or 
[email protected].


[[Page 63192]]

I. Background Information

A. Part 134, Rules of Procedure Governing Cases Before the Office of 
Hearings and Appeals

    SBA is removing Sec.  134.317 from its regulations because the 
procedure addressed in this regulation, the return of size appeal case 
files, is no longer necessary. Case files are now transmitted 
electronically to OHA from SBA's Area Offices, which eliminates the 
need to return paper records by mail. SBA is also revising Sec.  
134.714 to clarify that the decision of a Judge regarding a status 
protest appeal from a Women-Owned Small Business (WOSB) or Economically 
Disadvantaged Women-Owned Small Business (EDWOSB) is SBA's final agency 
decision and becomes effective upon issuance. SBA received one comment 
regarding reducing the amount of words in its regulations, which we 
have done in this regulation by removing one section of the OHA's 
regulations. SBA will consider this comment when drafting future OHA 

II. Section by Section Analysis

A. Sec.  134.317 Return of the Case File

    SBA is removing Sec.  134.317 of its regulations, which currently 
states that upon issuance of a decision, OHA will return the case file 
to the transmitting Area Office. When a size appeal is filed, SBA's 
Area Office will often mail the original paper protest file to OHA for 
review. Pursuant to Sec.  134.317, OHA will then send the original file 
back to the Area Office at the conclusion of the appeal process. For 
several years, however, OHA has transitioned many of its processes to 
electronic transmission and storage. OHA will now transition this part 
of the size appeal process to a completely electronic method. 
Therefore, neither the Area Offices nor OHA will need to mail the paper 
protest file back and forth. As such, this regulation is no longer 

B. Sec.  134.714 When must the Judge issue his or her decision?

    SBA is adding language to Sec.  134.714 of its regulations to 
clarify that decisions issued by OHA pursuant to WOSB or EDWOSB status 
protest appeals are considered final agency decisions. Currently, the 
rule is silent on the issue, which could lead to confusion since other 
size and status appeal regulations in part 134 clearly state that the 
OHA decision is a final agency decision. See Sec.  134.316(d) (size 
appeals), Sec.  134.409(a) (8(a) appeals), and Sec.  134.515(a) 
(Service-Disabled Veteran-Owned Small Business Concern status protest 
appeals). SBA does not follow a different process for women-owned 
businesses. For example, OHA's WOSB/EDWOSB appeal decisions currently 
state that the decision is the final agency decision. As such, SBA 
believes that the proposed revision for Sec.  134.714 will clarify that 
the Judge's decision in a WOSB or EDWOSB status protest appeal is the 
final agency decision and that the decision becomes effective upon 

III. Compliance With Executive Orders 12866, 13771, 12988, and 13132, 
the Paperwork Reduction Act (44 U.S.C., Ch. 35), and the Regulatory 
Flexibility Act (5 U.S.C. 601-612)

A. Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule does not constitute a significant regulatory action for purposes 
of Executive Order 12866 and is not a major rule under the 
Congressional Review Act, 5 U.S.C. 801, et seq.

B. Executive Order 13771

    This rule is expected to be an Executive order deregulatory action 
with an annualized net savings of $28,733 and a net present value of 
$410,478, both in 2016 dollars.
    This rule removes Sec.  134.317, Return of the case file, because 
it is no longer necessary. Case files will now be transmitted 
electronically to OHA from the Area Office, eliminating the need to 
return paper records by mail. This rule will eliminate significant 
costs related to packing, labeling, and shipping case files from the 
transmitting Area Office and returning those files by mail. OHA 
receives and returns approximately 120 case files per fiscal year to 
the Area Offices, for a total of 240 shipments. Assuming it takes 45 
minutes to prepare the shipment, printing, and mailing the files and 
that a GS-13 analyst performs this work at a wage of $112,393 plus 30 
percent for benefits, or $146,111 ($73 hourly), this would save the 
government $13,140, annually. The cost of each shipment is 
approximately $70, which would save the government an additional 
$16,800 for a total savings of $29,940 per year, in current dollars.

C. Executive Order 12988

    This action meets applicable standards set forth in section 3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden. The action does not 
have retroactive or preemptive effect.

D. 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 levels of government, as specified in the Executive order. As 
such, it does not warrant the preparation of a Federalism Assessment.

E. Paperwork Reduction Act

    The SBA has determined that this final rule does not impose 
additional reporting or recordkeeping requirements under the Paperwork 
Reduction Act, 44 U.S.C. chapter 35.

F. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires administrative 
agencies to consider the effect of their actions on small entities, 
small non-profit businesses, and small local governments. Pursuant to 
the RFA, when an agency issues a rule, the agency must prepare an 
analysis that describes whether the impact of the rule will have a 
significant economic impact on a substantial number of small entities. 
If not, the RFA permits agencies to certify to that effect. SBA 
believes that the removal of Sec.  134.317 will only impact itself and 
that it will save SBA the costs associated with mailing paper files 
back and forth during the appeal process. SBA therefore certifies that 
this rule has ``no significant impact upon a substantial number of 
small entities'' within the meaning of the RFA.

List of Subjects in 13 CFR Part 134

    Administrative practice and procedure, Claims, Equal employment 
opportunity, Lawyers, Organizations and functions (Government 

    Accordingly, for the reasons stated in the preamble, SBA amends 13 
CFR part 134 as follows:


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), 634(i), 
637(a), 648(l), 656(i), 657t and 687(c); 38 U.S.C. 8127(f); E.O. 
12549, 51 FR 6370, 3 CFR, 1986 Comp., p. 189.
    Subpart J issued under 38 U.S.C. 8127(f)(8)(B).
    Subpart K issued under 38 U.S.C. 8127(f)(8)(A).
    Subpart L issued under 15 U.S.C. 636(a)(36); Pub. L. 116-136; 
Pub. L. 116-139; 116-142; 116-147.

[[Page 63193]]

Sec.  134.317  [Removed and reserved]

2. Remove and reserve Sec.  134.317.

3. Amend Sec.  134.714 by adding a sentence to the end of the section 
to read as follows:

Sec.  134.714  When must the Judge issue his or her decision?

    * * * The Judge's decision is the final agency decision and becomes 
effective upon issuance.

Jovita Carranza,
[FR Doc. 2020-19567 Filed 10-6-20; 8:45 am]