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Federal Register / Vol. 86, No. 177 / Thursday, September 16, 2021 / Rules and Regulations
extends the deferment period of the PPP
loan until a final decision is issued under 134.1211.
134.1203

Standing.

Only the borrower on a loan, or its legal successor in interest, for which SBA has issued a final SBA loan review decision that makes a finding in 134.1201b1 through 4 has standing to appeal the final SBA loan review decision to OHA. Lenders and individual owners of a borrower entity do not have standing to appeal a final SBA loan review decision.
134.1204

The appeal petition.

a Content. The appeal petition must include the following information:
1 A copy of the final SBA loan review decision that is being appealed and the date it was received by the borrower. A Notice of Paycheck Protection Program Forgiveness Payment does not provide a borrower with a right to appeal to OHA.
2 A full and specific statement as to why the final SBA loan review decision is alleged to be erroneous, together with all factual information and legal arguments supporting the allegations.
There is no required format for an appeal petition. However, the appeal petition must meet the following requirements:
i The maximum length of an appeal petition not including attachments is 20 pages. A table of authorities is required only for petitions citing more than twenty cases, regulations, or statutes.
ii Clearly label any exhibits and attachments.
3 The name, address, telephone number, email address, and signature of the appellant or its attorney.
b Dismissal. An appeal petition that does not contain all of the information required by paragraph a of this section may be dismissed, with or without prejudice, at the Judges own initiative, or upon motion of SBA.
c Motion for more definite statement. 1 SBA may, no later than five calendar days after receiving a Notice and Order on an appeal petition, move for an order to the appellant 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.
2 A motion for a more definite appeal petition stays SBAs time for filing a response. The Judge will establish the time for filing and serving a response and will extend the close of the record as appropriate.
3 If the appellant does not comply with the Judges order to provide a more
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definite appeal petition or otherwise fails to comply with applicable regulations in this subpart, the Judge may dismiss the petition with prejudice.
134.1205

Dismissal.

a The Judge must dismiss the appeal if:
1 The appeal is beyond OHAs jurisdiction as set forth under 134.1201;
2 The appeal is untimely under 134.1202;
3 The appellant lacks standing to appeal under 134.1203; or 4 The appeal is premature because SBA has not yet made a final SBA loan review decision.
b The Judge may dismiss the appeal in accordance with 134.1204b or c3, or if the appeal does not, on its face, allege specific facts that if proven to be true, warrant reversal or remand of the final SBA loan review decision.
134.1206

Notice and Order.

Upon receipt of an appeal challenging a final SBA loan review decision, OHA
will assign the matter to either an Administrative Law Judge or an Administrative Judge in accordance with 134.218. Unless the appeal is dismissed under 134.1205, the Judge will issue a Notice and Order, utilizing the OHA Case Portal, establishing a deadline for production of the administrative record and specifying a date by which SBA may respond to the appeal.
134.1207

The administrative record.

a Time limits. The administrative record will be due 20 calendar days after issuance of the Notice and Order unless additional time is requested and granted.
b Contents. The administrative record shall include non-privileged, relevant documents that SBA
considered in making its final loan review decision or that were before SBA
at the time of the final loan review decision. The administrative record need not, however, contain all documents pertaining to the appellant.
c Non-waiver. In the event that privileged or confidential information is disclosed in the administrative record, such disclosure shall not operate as a waiver of any claim of privilege or confidentiality by SBA.
d Filing. SBA will file the administrative record with OHA and serve it on appellant utilizing the OHA
Case Portal.
e Objections. 1 Any objection to the administrative record must be filed with OHA and served on SBA no later than 30 calendar days after the issuance
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of the Notice and Order, utilizing the OHA Case Portal. If additional time to file the administrative record was requested and granted by a Judge, appellant will have 10 calendar days from the date SBA is required to file the administrative record under the judges order granting an extension in which to file an objection to the administrative record.
2 The appellant may object to the absence of any document from the administrative record that the appellant believes should have been included in the administrative record.
3 The Judge will rule upon such objections and may direct or permit that the administrative record be supplemented.
134.1208

Response to an appeal petition.

a Who may respond. SBA may respond to an appeal as determined in its discretion, but SBA is not required to respond. If SBA elects not to respond, such election shall not be interpreted as an admission or waiver of any allegation of law or fact. In addition, after review of the appeal petition, OHA may request SBA to respond for good cause shown by OHA. Only SBA may respond. If filed, the response should set forth the relevant facts and legal arguments to the issues presented on appeal.
b Time limit. If an SBA response is filed, it must be filed within 45 calendar days after issuance of the Notice and Order.
c Close of record. The record will close 45 calendar days from the issuance of the Notice and Order, unless the Judge decides otherwise. Generally, filings after the close of record will not be considered.
d Service. If a response is filed, the SBA must file its response with OHA, and serve a copy of the response upon the appellant or its attorney, as applicable by utilizing the OHA Case Portal.
e Reply to response. Generally, a reply to a response is not permitted unless the Judge directs otherwise. See 134.206e. However, upon motion see 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 after review of SBAs response and/or the administrative record. The proposed supplemental pleading must be filed and served with the motion utilizing the OHA Case Portal.
134.1209 Evidence beyond the record, discovery, and oral hearings.

a Generally, the Judge may not admit evidence beyond the administrative record.

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