Regulatory Reform Initiative: Rules of Procedure Governing Cases Before the Office of Hearings and Appeals
| Published date | 07 October 2020 |
| Citation | 85 FR 63191 |
| Record Number | 2020-19567 |
| Section | Rules and Regulations |
| Court | Small Business Administration |
Federal Register, Volume 85 Issue 195 (Wednesday, October 7, 2020)
[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]
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SMALL BUSINESS ADMINISTRATION
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.
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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].
SUPPLEMENTARY INFORMATION:
[[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
rulemakings.
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
necessary.
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
issuance.
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
agencies).
Accordingly, for the reasons stated in the preamble, SBA amends 13
CFR part 134 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), 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]
0
2. Remove and reserve Sec. 134.317.
0
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,
Administrator.
[FR Doc. 2020-19567 Filed 10-6-20; 8:45 am]
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