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Federal Register / Vol. 86, No. 177 / Thursday, September 16, 2021 / Rules and Regulations
documents pertaining to the appellant.
SBA will file the administrative record with OHA and serve it on appellant utilizing the OHA Case Portal. This provision states that 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. This section permits the appellant to object to the absence of any document from the administrative record that the appellant believes should have been included in the administrative record. Generally, such objections must be filed with OHA
and served on SBA no later than 30
calendar days after issuance of the Notice and Order utilizing the OHA
Case Portal. The Judge will rule upon such objections and may direct or permit that the administrative record be supplemented.
Section 134.1208, Response to an appeal petition, prescribes that only SBA, though not required, may respond to an appeal. In addition, OHA can request SBA to respond for good cause shown by OHA. The response should set forth the relevant facts and legal arguments to the issues presented on appeal. If SBA elects not to respond to the appeal, such election shall not be interpreted to be an admission or waiver of any allegation of law or fact. Except for good cause shown, a response filed after the close of record established by the Judge will not be considered. If SBA
elects to respond, SBA must file its response with OHA and serve a copy of the response upon the appellant utilizing the OHA Case Portal. No reply to a response will be permitted unless the Judge directs otherwise.
Section 134.1209, Evidence beyond the record, discovery and oral hearings, provides that, generally, the Judge may not admit evidence beyond the written administrative record. Neither discovery nor oral hearings will be permitted in appeals from final SBA loan review decisions. All appeals under subpart L
will be decided solely on a review of the written administrative record, the appeal petition, any response, any reply, and filings related to objection to the administrative record.
Section 134.1210, Standard of review, provides that the standard of review is whether the final SBA loan review decision was based on clear error of fact or law. The appellant has the burden of proof.
Section 134.1211, Decision on appeal, provides that the Judge will issue his or her decision within 45 calendar days after the close of record, as practicable.
The decision will contain findings of fact and conclusions of law, the reasons
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for such findings and conclusions, and any relief ordered. The decision will be served upon appellant and SBA
utilizing the OHA Case Portal. The Judges decision on the appeal is an initial decision. However, unless a request for reconsideration is filed pursuant to paragraph c of 134.1211
or the Administrator, solely within the Administrators discretion, decides to review or reverse the initial decision pursuant to paragraph d of 134.1211, an initial decision shall become the final decision of SBA 30 calendar days after its service and is thereafter appealable to the appropriate Federal district court. This section allows for a request for reconsideration pursuant to paragraph c of 134.1211 by SBA or appellant. This section also provides the Administrator, solely within the Administrators discretion, with the right to review or reverse an initial OHA
decision or a reconsidered initial OHA
decision pursuant to paragraph d of 134.1211. Such discretionary authority of the Administrator does not create additional rights of appeal on the part of an appellant not otherwise specified in SBA regulations. This section also provides that decisions rendered by OHA under subpart L are not precedential. This section provides that final decisions rendered under this section may be published by OHA
within its discretion with any necessary redactions of confidential business and financial information or personally identifiable information. Lastly, this section provides that final decisions may be appealed to the appropriate Federal district court only.
Section 134.1212, Effects of the decision, provides that OHA may affirm, reverse, or remand a final SBA loan review decision. If remanded, OHA no longer has jurisdiction over the matter unless a new appeal is filed as a result of a new final SBA loan review decision.
Section 134.1213, Equal Access to Justice Act EAJA, provides that a prevailing appellant is not entitled to recover attorneys fees. Appeals to OHA
from final SBA loan review decisions under the PPP are not proceedings that are required to be conducted by an Administrative Law Judge under 134.603.
Section 134.1214, Confidential information, provides that if a filing or other submission made pursuant to an appeal in subpart L contains confidential business and financial information; personally identifiable information; source selection sensitive information; income tax returns;
documents and information covered under 120.1060; or any other exempt
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information, that information is not available to the public pursuant to the Freedom of Information Act FOIA, 5
U.S.C. 552.
Compliance With Executive Orders 12866, 12988, 13132, and 13563, the Congressional Review Act, Paperwork Reduction Act 44 U.S.C. Ch. 35, and the Regulatory Flexibility Act 5 U.S.C.
601612
Executive Orders 12866 and 13563
OMBs Office of Information and Regulatory Affairs OIRA has determined that this final rule is economically significant for the purposes of Executive Orders 12866 and 13563 SBA, however, is proceeding under the emergency provision at Executive Order 12866 Section 6a3D based on the need to move expeditiously to mitigate the current economic conditions arising from the COVID19 emergency.
Executive Order 12988
SBA has drafted this rule, to the extent practicable, in accordance with the standards set forth in section 3a and 3b2 of Executive Order 12988, to minimize litigation, eliminate ambiguity, and reduce burden. The rule has no preemptive or retroactive effect.
Executive Order 13132
SBA has determined that this rule 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 layers of government. Therefore, SBA has determined that this rule has no federalism implications warranting preparation of a federalism assessment.
Paperwork Reduction Act, 44 U.S.C.
Chapter 35
SBA has determined that this final rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act.
Congressional Review Act OIRA has also determined that this rule is a major rule under Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 also known as the Congressional Review Act or CRA, 5 U.S.C. 8042. If a rule is deemed major, the CRA generally provides that the rule may not take effect until at least 60 days following its publication unless the agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 808. For the reasons discussed in Section II above, SBA finds
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