Regulatory Reform Initiative: Rules of Procedure Governing Cases Before the Office of Hearings and Appeals, 7893-7894 [2020-02494]

Agencies

• SMALL BUSINESS ADMINISTRATION

[Federal Register Volume 85, Number 29 (Wednesday, February 12, 2020)]
[Proposed Rules]
[Pages 7893-7894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02494]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 85, No. 29 / Wednesday, February 12, 2020 / 
Proposed Rules

[[Page 7893]]



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: Proposed 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 to 
remove an unnecessary regulatory provision and to clarify an existing 
rule of procedure.

DATES: Comments must be received on or before April 13, 2020.

ADDRESSES: You may submit comments, identified by RIN: 3245-AH01, by 
any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail or Hand Delivery/Courier: Ashley Cloud, Office of 
Hearings and Appeals, U.S. Small Business Administration, 409 Third 
Street SW, Washington, DC 20416.
    SBA will post all comments on https://www.regulations.gov. If you 
wish to submit confidential business information (CBI), as defined in 
the User Notice at https://www.regulations.gov, please submit the 
information to Ashley Cloud, Office of Hearings and Appeals, 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 on whether it 
will publish the information.

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

SUPPLEMENTARY INFORMATION: 

I. Background Information

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

    SBA is proposing to remove 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 the Office of Hearings and Appeals (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.

B. Executive Order 13771

    On January 30, 2017, President Trump signed Executive Order 13771, 
Reducing Regulation and Controlling Regulatory Costs, which, among 
other objectives, is intended to ensure that an agency's regulatory 
costs are prudently managed and controlled so as to minimize the 
compliance burden imposed on the public. For every new regulation an 
agency proposes to implement, unless prohibited by law, this Executive 
Order requires the agency to (i) identify at least two existing 
regulations that the agency can cancel; and (ii) use the cost savings 
from the cancelled regulations to offset the cost of the new 
regulation.

C. Executive Order 13777

    On February 24, 2017, the President issued Executive Order 13777, 
Enforcing the Regulatory Reform Agenda, which further emphasized the 
goal of the Administration to alleviate the regulatory burdens placed 
on the public. Under Executive Order 13777, agencies must evaluate 
their existing regulations to determine which ones should be repealed, 
replaced, or modified. In doing so, agencies should focus on 
identifying regulations that, among other things: Eliminate jobs or 
inhibit job creation; are outdated, unnecessary or ineffective; impose 
costs that exceed benefits; create a serious inconsistency or otherwise 
interfere with regulatory reform initiatives and policies; or are 
associated with Executive Orders or other Presidential directives that 
have been rescinded or substantially modified.

II. Section by Section Analysis

A. Sec.  134.317 Return of the Case File

    SBA is proposing to remove 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 proposing to add 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.

[[Page 7894]]

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 proposed 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 proposes to remove 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 proposes 
to amend 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), 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).
    Source: 61 FR 2683, Jan. 29, 1996, unless otherwise noted.


Sec.  134.317   [Removed and Reserved]

0
2. Remove and reserve Sec.  134.317.
0
3. Amend Sec.  134.714 by adding a sentence at 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. 2020-02494 Filed 2-11-20; 8:45 am]
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