81 FR 69723 - Rules of Procedure Governing Cases Before the Office of Hearings and Appeals

SMALL BUSINESS ADMINISTRATION

Federal Register Volume 81, Issue 195 (October 7, 2016)

The U.S. Small Business Administration (SBA) is proposing to amend the rules of practice of its Office of Hearings and Appeals (OHA) to implement Section 869 of the National Defense Authorization Act for Fiscal Year 2016. This legislation authorizes OHA to decide Petitions for Reconsideration of Size Standards. This rule also proposes to revise the rules of practice for OHA appeals of agency employee grievances.

[Federal Register Volume 81, Number 195 (Friday, October 7, 2016)]
[Proposed Rules]
[Pages 69723-69729]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-24231]


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SMALL BUSINESS ADMINISTRATION

13 CFR Parts 121 and 134

RIN 3245-AG82


Rules of Procedure Governing Cases Before the Office of Hearings 
and Appeals

AGENCY: U.S. Small Business Administration.

ACTION: Proposed rule.

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SUMMARY: The U.S. Small Business Administration (SBA) is proposing to 
amend the rules of practice of its Office of Hearings and Appeals (OHA) 
to implement Section 869 of the National Defense Authorization Act for 
Fiscal Year 2016. This legislation authorizes OHA to decide Petitions 
for Reconsideration of Size Standards. This rule also proposes to 
revise the rules of practice for OHA appeals of agency employee 
grievances.

DATES: Comments must be received on or before December 6, 2016.

ADDRESSES: You may submit comments, identified by RIN: 3245-AG82 by any 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail, Hand Delivery/Courier: Delorice Price Ford, 
Assistant Administrator for Hearings and Appeals, U.S. Small Business 
Administration, 409 Third Street SW., Washington, DC 20416.
    SBA will post all comments on www.regulations.gov. If you wish to 
submit confidential business information (CBI) as defined in the User 
Notice at www.regulations.gov, please submit the information to Linda 
(Lin) DiGiandomenico, Attorney Advisor, Office of Hearings and Appeals, 
U.S. Small Business Administration, 409 Third Street SW., Washington, 
DC 20416, or send an email 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 whether it will publish the information.

FOR FURTHER INFORMATION CONTACT: Linda (Lin) DiGiandomenico, Attorney 
Advisor, at (202) 401-8206 or [email protected].

SUPPLEMENTARY INFORMATION: This proposed rule would amend the rules of 
practice for the SBA's Office of Hearings and Appeals (OHA) in order to 
implement section 869(b) of the National Defense Authorization Act for 
Fiscal Year 2016, Public Law 114-92, 129 Stat. 726, November 25, 2015 
(NDAA 2016). This legislation added a provision to section 3(a) of the 
Small Business Act to authorize OHA to hear and decide Petitions for 
Reconsideration of Size Standards (Size Standard Petitions or 
Petitions). A Size Standard Petition may be filed at OHA after SBA 
publishes a final rule in the Federal Register to revise, modify, or 
establish a size standard. This proposed rule would create a new 
subpart I in OHA's regulations (13 CFR part 134) to set out detailed 
rules of practice for Size Standard Petitions, revise OHA's general 
rules of practice in subparts A and B of part 134 as required by the 
new legislation, and amend SBA's small business size regulations (13 
CFR part 121) to include Size Standard Petitions as part of SBA's 
process for establishing size standards.
    This proposed rule also would revise the rules of practice for OHA 
appeals of agency employee grievances, in concert with SBA's revisions 
of its Standard Operating Procedure (SOP) 37 71, The Employee Dispute 
Resolution Process.

Section-by-Section Analysis

A. Part 121

    SBA proposes to amend Sec.  121.102, the rules for establishing 
size standards, to provide for Petitions for Reconsideration of Size 
Standards (Size Standard Petitions or Petitions), pursuant to 15 U.S.C. 
632(a)(9). New paragraph (e) would require SBA to include instructions 
for filing a Size Standard Petition in any final rule revising, 
modifying, or establishing a size standard. The rule would inform the 
public that, as stated in the NDAA 2016, any Petition for 
reconsideration of a size standard must be filed no later than 30 days 
after the final rule is published. New paragraph (f) would require SBA 
to publish a notice in the Federal Register within 14 calendar days 
after a Size Standard Petition is filed. Among other things, the notice 
would let interested parties know that they may intervene in the 
dispute. New paragraph (g) would require SBA to publish notice in the 
Federal Register where SBA grants a petition for reconsideration of a 
size standard that had been revised or modified.

B. Part 134, Subpart A

    In Sec.  134.101, SBA proposes to revise the definition for ``AA/
OHA'' to include the new statutory title ``Chief Hearing Officer''. SBA 
also proposes to add definitions for ``Administrative Judge'' 
(including the new statutory title ``Hearing Officer''), ``Petitioner'' 
(as the party who initially files a petition), and ``Size Standard 
Petition'' (citing 15 U.S.C. 632(a)(9) and subpart I of part 134).
    Section 134.102 lists the cases in which OHA has authority to 
conduct proceedings. In paragraph (r), on Employee Disputes, SBA 
proposes to remove the reference to ``Appropriate Management Official'' 
(AMO), a term being eliminated from the EDRP. Paragraph (t) permits the 
Administrator to refer matters to OHA through a SOP, Directive, 
Procedural Notice, or individual request. Section 869(a)(3) of the NDAA 
2016, repealed this regulatory provision. As a result, SBA proposes to 
amend paragraph (t) by removing the current text and adding in its 
place, the authority for OHA to accept Size Standard Petitions.

Part 134, Subpart B

    Section 134.201 would be amended to redesignate paragraph (7) as 
paragraph (8) and to add a new paragraph (7), which would state that 
the rules of practice governing Size Standard Petitions cases are at 
new subpart I of part 134.

[[Page 69724]]

    Section 134.227 would be amended to list Size Standard Petitions as 
a type of case in which OHA would issue a final decision. To effect 
this change, the rule proposes to redesignate paragraph (b)(4) as 
paragraph (b)(5) and adding a new paragraph (b)(4).

C. Part 134, Subpart H

    The rules of practice governing Employee Dispute appeals would be 
revised to correspond to revisions being made to Standard Operating 
Procedure (SOP) 37 71.
    Section 134.801 lists the rules in subparts A and B that also apply 
to Employee Dispute appeals. SBA proposes to remove paragraph (b)(11) 
from the list because this rule proposes to include all rules of 
practice governing the review of initial decisions in Sec.  134.809.
    Section 134.803 governs the commencement of appeals. SBA proposes 
to revise the section heading and paragraphs (a) and (b) to reflect the 
elimination of the term ``AMO'' from the EDRP, and to shorten the 
Employee's deadline for filing the appeal in the event the Agency 
declines to issue an appealable ``Step Two'' decision. The current rule 
requires the employee to file an appeal ``no sooner than 16 days and no 
later than 55 days from the date on which the Employee filed the 
original Statement of Dispute.'' The proposed rule would revise that 
time to ``no later than 15 calendar days from the date the Step Two 
decision was due.'' This change would simplify the Employee's deadline 
for filing an appeal.
    SBA proposes to revise Sec.  134.804, which sets out the 
requirements for filing an appeal petition, including the contents of 
the petition, the supporting information to be submitted with it, as 
well as the requirements for service of the petition. The rule proposes 
to amend paragraphs (a)(1) through (a)(3) and paragraph (b) to conform 
the descriptions of the required information to the terms used in the 
EDRP. Specifically, the term ``Statement of Dispute'' would be replaced 
with ``SBA Dispute Form 2457''; and references to ``AMO's decision'' 
and ``AMO Official'' would be replaced with ``Step One decision'' and/
or ``Step Two decision'' or ``Step Two Official'' as applicable. The 
rule would also remove paragraph (a)(6), which currently requires the 
Employee to provide fax numbers, home mailing addresses and other 
contact information. In addition, because SBA Form 2457 contains a 
certificate of service, the rule proposes to remove paragraph (c), 
which requires employees to file a separate certificate of service. 
Revised Sec.  134.805(d) would provide that email, rather than U.S. 
Mail, is the default method by which OHA serves orders and the 
decision.
    Section 134.807(a) currently requires SBA to file the ``Dispute 
File.'' In place of that, the proposed rule would require SBA to file 
``any documentation, not already filed by the Employee, that it wishes 
OHA to consider,'' thus reducing wasteful duplication of paper. In 
paragraph (b), SBA proposes to shorten the deadline for filing the 
response to an Employee's appeal from ``no later than 15 days from the 
conclusion of mediation or 45 days from the filing of the appeal 
petition, whichever is later'' to ``15 calendar days'' in place of ``15 
days'' and ``45 days.'' This change would simplify the deadline for 
filing a response to an Employee's appeal. Revised paragraph (c) would 
eliminate the reference to the ``Dispute File.''
    Section 134.808(a), on the decision, would be revised to update 
terminology.
    Section 134.809 concerns review of OHA's initial decision. The 
revised rule would allow only certain SBA officials to request a review 
of OHA's initial decision. The official would be required to request 
the OHA file within five calendar days after receiving the decision. 
OHA would have five days to provide copies to both the official and to 
the Employee, and the official would have 15 calendar days from receipt 
of the file to state his or her objections to the OHA decision. As 
before, the Employee does not have the right to request a review of 
OHA's initial decision.

D. Part 134, Subpart I

    SBA proposes to add Subpart I setting forth the rules of practice 
before OHA for Petitions for Reconsideration of Size Standards pursuant 
to 15 U.S.C. 632(a)(9).
    Proposed Sec.  134.901 states that the provisions of subparts A and 
B also apply to Size Standard Petitions, except where inconsistent with 
rules set out in subpart I.
    As proposed in Section 134.902(a), any person ``adversely 
affected'' by a new, revised, or modified size standard would have 
standing to file a Petition within 30 days from the date of publication 
of the final rule promulgating that size standard. Paragraph (b) would 
provide that a business entity is not ``adversely affected'' unless it 
conducts business in the industry associated with the size standard 
being challenged and either it qualified as a small business concern 
before the size standard was revised or modified, or it would be 
qualified as a small business concern under the size standard as 
revised or modified.
    Section 134.903(a) would reiterate the statutory deadline for 
filing a Petition, which is ``not later than 30 days after'' the final 
rule is published in the Federal Register that revises, modifies, or 
establishes a new size standard; would clarify that the days counted 
are calendar days; and would authorize OHA to dismiss an untimely 
Petition. Paragraph (b) would require OHA to dismiss as premature a 
Petition filed in response to a notice of proposed rulemaking. The 
retention of an existing size standard is not considered to be the 
revision, modification, or establishment of a standard and is not 
subject to these procedures. Paragraph (c) would require OHA to dismiss 
challenges to the retention of an existing size standard.
    Section 134.904(a) would require a Petition to identify the 
challenged size standard or standards and include the following: A copy 
of the final rule being challenged or an electronic link to the rule; a 
statement as to why the process used by SBA to revise, modify, or 
establish the size standard is alleged to be arbitrary, capricious, an 
abuse of discretion, or otherwise not in accordance with the law, 
together with supporting argument; a copy of any comments on the 
challenged size standard(s) that Petitioner had submitted in response 
to notice of proposal rulemaking on the size standard being petitioned 
(or a statement that none were submitted); and basic contact 
information for Petitioner or its attorney. Section 134.904(b) would 
permit multiple size standards from the same final rule to be 
challenged in a single Petition, but the Petitioner must demonstrate 
standing for each challenged size standard. Section 134.904(c) would 
require the same formatting standards as are required for size appeals 
under Section 134.305. Section 134.904(d) would require the Petitioner 
to serve a copy of the Petition on SBA's Office of Size standards as 
well as the Office of General Counsel. Section 134.904(e) would require 
a signed certificate of service similar to that required by 134.204(d) 
for size appeals.
    Section 134.905 would set out OHA's procedures on receipt of a 
Petition. These include assignment to a Judge, initial review, and 
issuance of a notice and order setting the deadline for SBA to send the 
administrative record (typically seven calendar days after issuance of 
the notice and order) and setting the close of record (typically 45 
calendar days from filing).
    Section 134.906 would permit interested persons with a direct stake 
in

[[Page 69725]]

the outcome of the case to intervene and obtain a copy of the Petition. 
Where a Petition contains confidential information, the intervener's 
attorney may obtain a complete copy under the terms of a protective 
order, similar to the procedures used in size appeals.
    Section 134.907 would establish the same filing and service rules 
as apply to other OHA proceedings.
    Section 134.908 would require SBA to submit to OHA a copy of the 
documentation and analysis supporting the revision, modification, or 
establishment of the challenged size standard, and would permit the 
Petitioner and any intervener, on request, to review this information.
    Section 134.909 would provide the standard of review, which is 
whether the process employed by SBA to arrive at the size standard 
``was arbitrary, capricious, an abuse of discretion, or otherwise not 
in accordance with the law.'' Also, the Petitioner would bear the 
burden of proof, and OHA would not adjudicate arguments for a different 
size standard.
    Section 134.910 would require OHA to dismiss a Petition if: (i) It 
does not allege facts that, if proven true, would warrant remand of the 
size standard; (ii) the Petitioner is not adversely affected by the 
challenged size standard; (iii) the Petition is untimely, premature, or 
is not otherwise filed according to the requirements; or (iv) the 
matter has been decided by or is currently before a court of competent 
jurisdiction.
    Section 134.911 would allow an intervener to file a response to the 
Petition, presenting argument, before the close of record. SBA also may 
intervene.
    Section 134.912 would not permit discovery, and would permit oral 
hearings only if the Judge determines that the case cannot be resolved 
without live testimony and the confrontation of witnesses. These rules 
are similar to the rules in size appeals.
    Under Sec.  134.913, cases would be decided based on the pleadings 
and the administrative record. The Judge may admit new evidence on 
motion establishing good cause.
    Section 134.914 would require OHA to issue a decision within 45 
calendar days after close of record, as practicable. The rule would 
also establish that the decision is final and will not be reconsidered.
    Under Sec.  134.915, if OHA grants a Size Standard Petition, OHA 
would not assign a size standard to the industry in question. Rather, 
the case would be remanded to the Office of Size Standards for further 
analysis. Once remanded, OHA no longer has jurisdiction over the case 
unless a new Petition is filed as a result of a new final rule.
    Section 134.916 would require SBA to rescind the challenged size 
standard if OHA grants a Petition. The size standard in effect prior to 
the final rule would be restored until a new final rule is issued. If 
OHA denied a Petition, the size standard in the final rule would 
remain.
    Section 134.917 would state that because Size Standard Petition 
proceedings are not required to be conducted by an Administrative Law 
Judge, attorney's fees are not available under the Equal Access to 
Justice Act.
    Section 134.918 would reiterate the statutory provision in NDAA 
2016 that, for purposes of seeking judicial review of a new size 
standard, the publication of a final rule in the Federal Register to 
revise, modify, or establish size standards is considered the final 
agency action. This section would also make it clear that the filing of 
a Size Standard Petition would not be required before seeking judicial 
review.

Compliance With Executive Orders 12866, 12988, 13175 and 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 is also not a major rule under the Congressional Review Act, 5 
U.S.C. 800. This rule establishes the procedures for Petitions for 
Reconsideration of Size Standards at SBA's Office of Hearings and 
Appeals (OHA) and revises procedural rules at OHA for agency employee 
grievances. 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
    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.
Executive Order 13175
    For the purposes of Executive Order 13175, Consultation and 
Coordination with Indian Tribal Governments, SBA has determined that 
this proposed rule will not have substantial direct effects on one or 
more Indian Tribes, on the relationship between the Federal Government 
and Indian Tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian Tribes. Therefore, SBA 
determines that this proposed rule does not require consultations with 
tribal officials or warrant the publication of a Tribal Summary Impact 
Statement.
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.
Paperwork Reduction Act
    The SBA has determined that this rule does not impose additional 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act, 44 U.S.C. Chapter 35.
Regulatory Flexibility Act
    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. Small entities include 
small businesses, small not-for-profit organizations, and small 
governmental jurisdictions. 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 proposed rule would revise the regulations governing cases 
before SBA's Office of Hearings and Appeals (OHA), SBA's administrative 
tribunal. These regulations are procedural by nature. Specifically, the 
proposed rule would establish rules of practice for

[[Page 69726]]

Petitions for Reconsideration of Size Standards (Size Standard 
Petitions), a new type of administrative litigation mandated by Sec.  
869(b) of the National Defense Authorization Act for Fiscal Year 2016. 
This legislation provides a new statutory right to challenge a size 
standard revised, modified, or established by the SBA through a final 
rule. Further, this legislation requires OHA to hear any Size Standard 
Petitions that are filed. This proposed rule merely provides the rules 
of practice for the orderly hearing and disposition of Size Standard 
Petitions at OHA. While SBA does not anticipate that this proposed rule 
would have a significant economic impact on any small business, we do 
welcome comments from any small business setting out how and to what 
degree this proposed rule would affect it economically.
    The Small Business Size Regulations provide that persons requesting 
to change existing size standards or to establish new size standards 
may address these requests to SBA's Office of Size Standards. 13 CFR 
121.102(d). Over the past five years, fewer than ten letters concerning 
size standards have been submitted per year, supporting SBA's belief 
that this proposed rule will not affect a substantial number of small 
entities. Further, a business adversely affected by a final rule 
revising a size standard has always had (and would continue to have) 
the option of judicial review in Federal court, yet the SBA knows of no 
such lawsuit ever having been filed.
    In addition to establishing rules of practice for Size Standard 
Petitions, this proposed rule would revise OHA's rules of practice for 
SBA Employee Disputes. This rulemaking is procedural, would impose no 
significant additional requirements on small entities, and would have 
minimal, if any, effect on small entities.
    Therefore, the Administrator of SBA certifies under 5 U.S.C. 605(b) 
that this proposed rule would not have a significant economic impact on 
a substantial number of small entities.

List of Subjects

13 CFR Part 121

    Administrative practice and procedure, Government procurement, 
Government property, Grant programs--business, Individuals with 
disabilities, Loan programs--business, Small businesses.

13 CFR Part 134

    Administrative practice and procedure, Claims, Equal access to 
justice, Lawyers, Organization and functions (Government agencies).

    For the reasons stated in the preamble, SBA proposes to amend 13 
CFR parts 121 and 134 as follows:

PART 121--SMALL BUSINESS SIZE REGULATIONS

0
1. The authority citation for part 121 continues to read as follows:

    Authority:  15 U.S.C. 632, 634(b)(6), 662, and 694a(9).

0
2. Amend Sec.  121.102 by adding paragraphs (e), (f), and (g) to read 
as follows:


Sec.  121.102  How does SBA establish size standards?

* * * * *
    (e) When SBA publishes a final rule in the Federal Register 
revising, modifying, or establishing a size standard, SBA will include 
in the final rule, an instruction that interested persons may file a 
petition for reconsideration of a revised, modified, or established 
size standard at SBA's Office of Hearings and Appeals (OHA) within 30 
calendar days after publication of the final rule in accordance with 15 
U.S.C. 632(a)(9) and part 134, subpart I of this chapter. The 
instruction will provide the mailing address, facsimile number, and 
email address of OHA.
    (f) Within 14 calendar days after a petition for reconsideration of 
a size standard is filed, unless it appears OHA will dismiss the 
petition for reconsideration, SBA will publish a notice in the Federal 
Register announcing a size standard or standards that have been 
challenged, the Federal Register citation of the final rule, the 
assigned OHA docket number, and the date of the close of record. The 
notice will further state that interested parties may contact OHA to 
intervene in the dispute pursuant to Sec.  134.906 of this chapter.
    (g) Where OHA grants a petition for reconsideration of a size 
standard that had been revised or modified, SBA will publish a notice 
in the Federal Register meeting the requirements of Sec.  134.916(a) of 
this chapter.

PART 134--RULES OF PROCEDURE GOVERNING CASES BEFORE THE OFFICE OF 
HEARINGS AND APPEALS

0
3. The authority citation for part 134 is revised 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), and 687(c); E.O. 12549, 51 FR 6370, 3 CFR, 
1986 Comp., p. 189.

0
4. Amend Sec.  134.101 by revising the definitions of ``AA/OHA'' and 
``Judge''; and by adding definitions for ``Administrative Judge'', 
``Petitioner'', and ``Size Standard Petition'' in alphabetical order, 
to read as follows:


Sec.  134.101  Definitions.

* * * * *
    AA/OHA means the Assistant Administrator for OHA, who is also the 
Chief Hearing Officer.
* * * * *
    Administrative Judge means a Hearing Officer, as described at 15 
U.S.C. 634(i), appointed by OHA to adjudicate cases.
* * * * *
    Judge means the Administrative Judge or Administrative Law Judge 
who decides an appeal or petition brought before OHA, or the AA/OHA 
when he or she acts as an Administrative Judge.
* * * * *
    Petitioner means the person who initially files a petition before 
OHA.
* * * * *
    Size Standard Petition means a petition for reconsideration of a 
revised, modified, or established size standard filed with OHA pursuant 
to 15 U.S.C. 632(a)(9) and subpart I of this part.
0
5. Amend Sec.  134.102 by revising paragraphs (r) and (t) to read as 
follows:


Sec.  134.102  Jurisdiction of OHA.

* * * * *
    (r) Appeals from 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;
* * * * *
    (t) Petitions for reconsideration of revised, modified, or 
established size standards pursuant to 15 U.S.C. 632(a)(9).
0
6. Amend Sec.  134.201 by:
0
a. Removing the word ``and'' in paragraph (b)(6);
0
b. Redesignating paragraph (b)(7) as paragraph (b)(8); and
0
c. Adding a new paragraph (b)(7).
    The addition to read as follows:


Sec.  134.201  Scope of the rules in this subpart B.

* * * * *
    (b) * * *
    (7) For Size Standard Petitions, in subpart I of this part (Sec.  
134.901 et seq.); and
* * * * *
0
7. Amend Sec.  134.227 by:
0
a. Removing the word ``and'' in paragraph (b)(3);

[[Page 69727]]

0
b. Redesignating paragraph (b)(4) as paragraph (b)(5); and
0
c. Adding a new paragraph (b)(4).
    The addition to read as follows:


Sec.  134.227  Finality of decisions.

* * * * *
    (b) * * *
    (4) Size Standard Petitions; and
* * * * *


Sec.  134.801  [Amended]

0
8. Amend Sec.  134.801 by adding the word ``and'' at the end of 
paragraph (b)(9); by removing the word ``and'' at the end of paragraph 
(b)(10) and adding a period in its place; and by removing paragraph 
(b)(11).
0
9. Amend Sec.  134.803 by:
0
a. Revising the section heading; and
0
b. Revising paragraphs (a) and (b).
    The revisions to read as follows:


Sec.  134.803  Commencement of appeals from SBA Employee Dispute 
Resolution Process cases (Employee Disputes).

    (a) An appeal from a Step Two decision must be commenced by filing 
an appeal petition within 15 calendar days from the date the Employee 
receives the Step Two decision.
    (b) If the Step Two Official does not issue a decision within 15 
calendar days of receiving the SBA Dispute Form from the Employee, the 
Employee must file his/her appeal petition at OHA no later than 15 
calendar days from the date the Step Two decision was due.
* * * * *
0
10. Amend Sec.  134.804 by
0
a. Revising paragraphs (a)(1), (a)(2), and (a)(3),
0
b. Adding the word ``and'' after the semicolon in paragraph (a)(5);
0
b. Removing paragraph (a)(6);
0
c. Redesignating paragraph (a)(7) as paragraph (a)(6);
0
d. Revising paragraph (b)(1);
0
e. Removing paragraph (c); and
0
f. Redesignating paragraphs (d) and (e) as paragraphs (c) and (d).
    The revisions to read as follows:


Sec.  134.804  The appeal petition.

    (a) * * *
    (1) The completed SBA Dispute Form;
    (2) A copy of the Step One and Step Two decisions, if any;
    (3) Statement of why the Step Two decision (or Step One decision, 
if no Step Two decision was received), is alleged to be in error;
* * * * *
    (b) * * *
    (1) The Step Two Official;
* * * * *


Sec.  134.805  [Amended]

0
11. Amend Sec.  134.805 by removing from paragraph (d) the term ``U.S. 
Mail'' and adding in its place the term ``email''.


Sec.  134.807  [Amended]

0
12. Amend 134.807 as follows:
0
a. By removing from paragraph (a), the words ``a copy of the Dispute 
File'' and adding, in their place, the words ``any documentation, not 
already filed by the Employee, that it wishes OHA to consider'';
0
b. By removing from paragraph (b), the words ``15 days'' and ``45 
days'' and adding, in both their places, the words ``15 calendar 
days''; and
0
c. By removing from paragraph (c), the words ``and the Dispute File are 
normally the last submissions'' and by adding, in their place, the 
words ``is normally the last submission''.


Sec.  134.808  [Amended]

0
13. Amend Sec.  134.808(a) by removing the word ``AMO's'' and adding in 
its place the words ``Step One or Step Two''.
0
14. Revise Sec.  134.809 to read as follows:


Sec.  134.809  Review of initial decision.

    (a) If the Chief Human Capital Officer, General Counsel for SBA, or 
General Counsel for the IG believes OHA's decision is contrary to law, 
rule, regulation, or SBA policy, that official may file a Petition for 
Review (PFR) of the decision with the Deputy Administrator (or IG for 
disputes by OIG employees) for a final SBA Decision. Only the Chief 
Human Capital Officer, General Counsel, or IG may file a PFR of an OHA 
decision; the Employee may not.
    (b) To file a PFR, the official must request a complete copy of the 
dispute file from the Assistant Administrator for OHA (AA/OHA) within 
five calendar days of receiving the decision. The AA/OHA will provide a 
copy of the dispute file to the official, the Employee, and the 
Employee's representative within five calendar days of the official's 
request. The official's PFR is due no later than 15 calendar days from 
the date the official receives the dispute file. The PFR must specify 
the objections to OHA's decision.
0
15. Add subpart I to read as follows:
Subpart I--Rules of Practice for Petitions for Reconsideration of Size 
Standards
Sec.
134.901 Scope of the rules in this subpart I.
134.902 Standing.
134.903 Commencement of cases.
134.904 Requirements for the Size Standard Petition.
134.905 Notice and order.
134.906 Intervention.
134.907 Filing and service.
134.908 The administrative record.
134.909 Standard of review.
134.910 Dismissal.
134.911 Response to the Size Standard Petition.
134.912 Discovery and oral hearings.
134.913 New evidence.
134.914 The decision.
134.915 Remand.
134.916 Effects of OHA's decision.
134.917 Equal Access to Justice Act.
134.918 Judicial review.

Subpart I--Rules of Practice for Petitions for Reconsideration of 
Size Standards


Sec.  134.901  Scope of the rules in this subpart I.

    (a) The rules of practice in this subpart I apply to Size Standard 
Petitions.
    (b) Except where inconsistent with this subpart, the provisions of 
subparts A and B of this part apply to Size Standard Petitions listed 
in paragraph (a) of this section.


Sec.  134.902  Standing.

    (a) A Size Standard Petition may be filed with OHA by any person 
that is adversely affected by the Administrator's decision to revise, 
modify, or establish a size standard.
    (b) A business entity is not adversely affected unless it conducts 
business in the industry associated with the size standard that is 
being challenged and:
    (1) The business entity qualified as a small business concern 
before the size standard was revised or modified; or
    (2) The business entity qualifies as a small business under the 
size standard as revised or modified.


Sec.  134.903  Commencement of cases.

    (a) A Size Standard Petition must be filed at OHA not later than 30 
calendar days after the publication in the Federal Register of the 
final rule that revises, modifies, or establishes the challenged size 
standard. An untimely Size Standard Petition will be dismissed.
    (b) A Size Standard Petition filed in response to a notice of 
proposed rulemaking is premature and will be dismissed.
    (c) A Size Standard Petition challenging a size standard that has 
not been revised, modified, or established through publication in the 
Federal Register will be dismissed.


Sec.  134.904  Requirements for the Size Standard Petition.

    (a) Form. There is no required form for a Size Standard Petition. 
However, it must include the following information:
    (1) A copy of the final rule published in the Federal Register to 
revise, modify, or establish a size standard, or an electronic link to 
the final rule;

[[Page 69728]]

    (2) A full and specific statement as to which size standard(s) in 
the final rule the Petitioner is challenging and why the process that 
was used to revise, modify, or establish each challenged size standard 
is alleged to be arbitrary, capricious, an abuse of discretion, or 
otherwise not in accordance with the law, together with argument 
supporting such allegation;
    (3) A copy of any comments the Petitioner submitted in response to 
the proposed notice of rulemaking that pertained to the size 
standard(s) in question, or a statement that no such comments were 
submitted; and
    (4) The name, mailing address, telephone number, facsimile number, 
email address, and signature of the Petitioner or its attorney.
    (b) Multiple size standards. A Petitioner may challenge multiple 
size standards that were revised, modified, or established in the same 
final rule in a single Size Standard Petition, provided that the 
Petitioner demonstrates standing for each of the challenged size 
standards.
    (c) Format. The formatting provisions of Sec.  134.203(d) apply to 
Size Standard Petitions.
    (d) Service. In addition to filing the Size Standard Petition at 
OHA, the Petitioner must serve a copy of the Size Standard Petition 
upon each of the following:
    (1) SBA's Office of Size Standards, U.S. Small Business 
Administration, 409 3rd Street SW., Mail Code 6530, Washington, DC 
20416, facsimile number (202) 205-6390; or [email protected]; and
    (2) SBA's Office of General Counsel, Associate General Counsel for 
Procurement Law, U.S. Small Business Administration, 409 3rd Street 
SW., Washington, DC 20416; facsimile number (202) 205-6873; or 
[email protected].
    (e) Certificate of Service. The Petitioner must attach to the Size 
Standard Petition a signed certificate of service meeting the 
requirements of Sec.  134.204(d).


Sec.  134.905  Notice and order.

    Upon receipt of a Size Standard Petition, OHA will assign the 
matter to a Judge in accordance with Sec.  134.218. Unless it appears 
that the Size Standard Petition will be dismissed under Sec.  134.910, 
the presiding Judge will issue a notice and order initiating the 
publication required by Sec.  121.102(f) of this chapter; specifying a 
date for the Office of Size Standards to transmit to OHA a copy of the 
administrative record supporting the revision, modification, or 
establishment of the challenged size standard(s); and establishing a 
date for the close of record. Typically, the administrative record will 
be due seven calendar days after issuance of the notice and order, and 
the record will close 45 calendar days from the date of OHA's receipt 
of the Size Standard Petition.


Sec.  134.906  Intervention.

    In accordance with Sec.  134.210(b), interested persons with a 
direct stake in the outcome of the case may contact OHA to intervene in 
the proceeding and obtain a copy of the Size Standard Petition. In the 
event that the Size Standard Petition contains confidential information 
and the intervener is not a governmental entity, the Judge may require 
that the intervener's attorney be admitted to a protective order before 
obtaining a complete copy of the Size Standard Petition.


Sec.  134.907  Filing and service.

    The provisions of Sec.  134.204 apply to the filing and service of 
all pleadings and other submissions permitted under this subpart unless 
otherwise indicated in this subpart.


Sec.  134.908  The administrative record.

    The Office of Size Standards will transmit to OHA a copy of the 
documentation and analysis supporting the revision, modification, or 
establishment of the challenged size standard by the date specified in 
the notice and order. The Chief, Office of Size Standards, will certify 
and authenticate that the administrative record, to the best of his or 
her knowledge, is complete and correct. The Petitioner and any 
interveners may, upon request, review the administrative record 
submitted to OHA. The administrative record will include the 
documentation and analysis supporting the revision, modification, or 
establishment of the challenged size standard.


Sec.  134.909  Standard of review.

    The standard of review for deciding a Size Standard Petition is 
whether the process employed by the Administrator to revise, modify, or 
establish the size standard was arbitrary, capricious, an abuse of 
discretion, or otherwise not in accordance with the law. OHA will not 
adjudicate arguments that a different size standard should have been 
selected. The Petitioner bears the burden of proof.


Sec.  134.910  Dismissal.

    The Judge must dismiss the Size Standard Petition if:
    (a) The Size Standard Petition does not, on its face, allege 
specific facts that if proven to be true, warrant remand of the size 
standard;
    (b) The Petitioner is not adversely affected by the final rule 
revising, modifying, or establishing a size standard;
    (c) The Size Standard Petition is untimely or premature pursuant to 
Sec.  134.903 or is not otherwise filed in accordance with the 
requirements in subparts A and B of this part; or
    (d) The matter has been decided or is the subject of adjudication 
before a court of competent jurisdiction over such matters.


Sec.  134.911  Response to the Size Standard Petition.

    Although not required, any intervener may file and serve a response 
supporting or opposing the Size Standard Petition at any time prior to 
the close of record. SBA may intervene as of right at any time in any 
case until 15 days after the close of record, or the issuance of a 
decision, whichever comes first. The response must present argument.


Sec.  134.912  Discovery and oral hearings.

    Discovery will not be permitted. Oral hearings will not be held 
unless the Judge determines that the dispute cannot be resolved except 
by the taking of live testimony and the confrontation of witnesses.


Sec.  134.913  New evidence.

    Disputes under this subpart ordinarily will be decided based on the 
pleadings and the administrative record. The Judge may admit additional 
evidence upon a motion establishing good cause.


Sec.  134.914  The decision.

    The Judge will issue his or her decision within 45 calendar days 
after close of the record, as practicable. The Judge's decision is 
final and will not be reconsidered.


Sec.  134.915  Remand.

    If OHA grants a Size Standard Petition, OHA will remand the matter 
to the Office of Size Standards for further analysis. Once remanded, 
OHA no longer has jurisdiction over the matter unless a new Size 
Standard Petition is filed as a result of a new final rule published in 
the Federal Register.


Sec.  134.916  Effects of OHA's decision.

    (a) If OHA grants a Size Standard Petition of a modified or revised 
size standard, the Administrator will promptly publish a Federal 
Register notice to suspend the size standard in question and restore 
the size standard that was in effect before being challenged in the 
Size Standard

[[Page 69729]]

Petition, until such time as a new final rule is published in the 
Federal Register. The OHA decision does not affect the validity of 
actions issued under the modified or revised size standard prior to the 
effective date of the notice suspending the size standard. If the size 
standard in question was newly established, the Administrator keeps the 
challenged size standard in effect while conducting further analysis on 
remand.
    (b) If OHA denies a Size Standard Petition, the size standard 
remains as published in the Federal Register.


Sec.  134.917  Equal Access to Justice Act.

    A prevailing Petitioner is not entitled to recover attorney's fees. 
Size Standard Petitions are not proceedings that are required to be 
conducted by an Administrative Law Judge under Sec.  134.603.


Sec.  134.918  Judicial review.

    The publication of a final rule in the Federal Register is 
considered the final agency action for purposes of seeking judicial 
review.

    Dated: September 29, 2016.
Maria Contreras-Sweet,
Administrator.
[FR Doc. 2016-24231 Filed 10-6-16; 8:45 am]
BILLING CODE 8025-01-P