leges and universities participating in the SBDC program; and

(6) Conferences on exporting and international trade sponsored by the public and private sector.

(b) In addition, the Office of International Trade works with the Department of Commerce, the International Trade Commission, and other Federal agencies, Small Business Development Centers (SBDCs) engaged in export promotion efforts, regional and local SBA offices, the small business community, and relevant state and local export promotion programs to:

(1) Identify sub-sectors of the small business community with strong

export potential;

(2) Identify areas of demand in foreign markets;

(3) Assist in increasing international marketing by developing a mechanism to link potential sellers and buyers;

(4) Assist small businesses in the formation and utilization of export trading companies, export management companies and research and development pools authorized under section 9 of the Small Business Act, 15 U.S.C. 631, et seq.; and

(5) Assist small businesses in obtaining counseling with respect to initiating and participating in any proceedings relating to the administration of the United States trade laws.

§ 129.300 Access to export financing programs.

The Office of International Trade works in cooperation with the ExportImport Bank of the United States, the Department of Commerce, other relevant Federal agencies, and the States to develop programs through which export specialists in SBA's regional offices, regional, district and branch loan officers, and SBDC personnel can facilitate the access of small businesses to relevant export and pre-export financing programs available from the Export-Import Bank, the SBA and the private sector. Such programs include:

(a) Providing information to small businesses on financing available under various Export-Import Bank programs;

(b) Assisting in the development of financial intermediaries and facilitat

(a) SBA may, upon written application by a borrower, suspend or undertake borrower's obligation to repay principal and interest on an SBA direct, immediate participation or guaranteed loan.

(b) When SBA has decided to suspend payment on a direct or immediate participation loan, a deferment will be approved under administrative procedures, and payment by borrower will not be required for a stated time period.

(c) In the case of a guaranteed loan, SBA may undertake a borrower's obligation to a participating lender for a period or aggregate periods not to exceed five (5) years. The loan may be extended beyond the statutory limit for a corresponding period of time to accommodate repayment of the obligation undertaken by SBA.

§ 131.4 Criteria.

Undertaking of the borrower's obligation under a guaranteed loan may only be considered if all the following conditions are met:

(a) SBA determines that without such undertaking the business will become or remain insolvent;

(b) SBA determines that with such undertaking the business will become or remain viable;

(c) SBA determines that alternative remedies, such as a simple deferment, are not available;

(d) The lender has granted a deferment(s) to the borrower equivalent to at least six (6) monthly installments immediately prior to moratorium approval and, in the opinion of the lender and SBA, such deferment(s) provided a beneficial result;

(e) All parties concerned execute a Moratorium Agreement satisfactory to SBA;

(f) The borrower and all co-makers of the guaranteed loan execute a demand note to repay SBA's moratorium advances, and all guarantors or other obligors of the guaranteed loan execute guarantee agreement(s) or any other instruments required by SBA to protect its interests under the demand note;

(g) The borrower and any other obligors provide such security as SBA

deems necessary or appropriate to insure that the rights and interests of the lender (SBA or participant) will be safeguarded adequately during and after the moratorium period; and

(h) Collateral securing the demand note shall include, but need not be limited to, all the collateral securing the guaranteed loan, and the lien positions for the demand note on such collateral shall only be subject to prior liens for the guaranteed loan.

§ 131.5 Time periods.

(a) Moratoriums will be limited to six months of future payments unless the SBA deems it necessary to authorize a maximum term of one year in a particular case. If beneficial results are evident to SBA after such period, the moratorium may be continued for additional periods.

(b) Succeeding moratoriums to a maximum aggregate period of five (5) years will not be authorized unless financial analysis indicates:

(1) A continued need for the undertaking;

(2) A significant benefit to the borrower; and

(3) Eventual viability (anticipated ability to repay from earnings) of the borrower.

(a) Repayment by the borrower of SBA's moratorium advances shall be made pursuant to the demand note executed by the borrower. SBA shall have the right to demand payment at any time SBA determines repayment is necessary or appropriate. The interest rate for the demand note shall be the same as for the guaranteed loan. SBA may demand payment in full of the principal and interest due under the demand note, or SBA may agree with the borrower on a repayment schedule which can include, but shall not be limited to, periodic repayments not less in amount and frequency than under the guaranteed loan. If SBA does not demand repayment until the borrower has repaid the guaranteed loan in full, SBA shall immediately thereafter demand repayment under the demand note.

Subpart A-General Provisions

§ 132.101 Purpose of these rules.

The Equal Access to Justice Act, 5 U.S.C. 504 and 504 note, provides for awarding attorney fees and other adjudication expenses to eligible individuals and entities who are parties to certain administrative proceedings (called adversary adjudications) before this Agency. Parties may be able to receive awards when they prevail over the Agency, unless the Agency's position in the proceeding was substantially justified. These rules define eligible parties and identify the kinds of proceedings covered. They also explain how to apply for awards, and the procedures and standards that this Agency will use to make them.

§ 132.102 When the Act applies.

The Act applies to any adversary adjudication pending before the Agency at any time between October 1, 1981, and September 30, 1984. This includes proceedings begun before October 1, 1981, if final Agency action has not been taken before that date, and proceedings pending on September 30, 1984, regardless of when they were initiated or when final Agency action

occurs.

§ 132.103 Proceedings covered.

(a) The Act applies to adversary adjudications conducted by this Agency. An adversary adjudication is an adjudication required to be conducted under 5 U.S.C. 554 in which the position of this or any other agency, or any component of any agency, is represented by an attorney or other representative who enters an appearance and participates in the proceedings. For this Agency, cases ordinarily covered are:

(1) Matters conducted pursuant to section 8(a)(9) of the Small Business Act, 15 U.S.C. 637(a)(9), and

(2) Matters conducted pursuant to sections 309 and 313 of the Small Business Investment Act, 15 U.S.C. 687a and e.

(b) If this Agency orders a particular matter to be determined as an adversary adjudication under the procedures set out in 5 U.S.C. 554, the Act

will apply, and this Agency will so state in its order designating the matter of hearing.

§ 132.104 Eligibility of applicants.

(a) In order to be eligible for an award of attorney fees or other expenses under the Act, the applicant must be a party to the adversary adjudication for which it seeks an award. The term party is defined in 5 U.S.C. 551(3). For the purpose of determining eligibility, the party shall be the person or entity identified in the order or notice initiating the proceeding or permitting intervention in it. All conditions of eligibility set out in this subpart and in subpart C must be satisfied.

(b) The types of eligible applicants are as follows:

(1) Individuals with a net worth not more than $1 million;

(2) Sole owners of unincorporated businesses if the owner has a net worth of $5 million or less and not more than 500 employees;

(3) Charitable or other organizations exempted from taxation by section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) having not more than 500 employees;

(4) Cooperative associations as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141(a)) having not more than 500 employees; and

(5) All other partnerships, corporations, associations or public or private organizations having $5 million or less net worth than 500 employees.

(c) For the purposes of eligibility, the net worth and number of employees of an applicant shall be determined as of the date the proceeding was initiated.

(d) Whether an applicant who owns an unincorporated business will be considered as an individual or a sole owner of an unincorporated business will be determined by whether the applicant's participation in the proceeding is related primarily to individual interests or business interests.

(e) The employees of an applicant include all those persons regularly providing work at the time the proceeding was initiated, whether or not at work on that date.

(f) An applicant's net worth includes the value of any assets disposed of for the purpose of meeting an eligibility standard and excludes any obligations incurred for this purpose. Transfers of assets or obligations incurred for less than reasonably equivalent value will be presumed to have been made for this purpose.

(g) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility. Affiliates are other individuals, corporations or other entities directly or indirectly connected to the applicant by a chain of ownership or control of a majority of the voting shares or other interests.

(h) An applicant is not eligible if it appears from the facts and circumstances that it has participated in the proceeding only on behalf of other persons or entities that are ineligible.

§ 132.105 Standards for awards.

(a) A prevailing applicant may receive an award for fees and expenses unless the position for an agency during the proceeding, or with respect to an ancillary or subsidiary issue in the proceeding that is sufficiently significant and discrete to merit treatment as a separate unit, was substantially justified. To avoid an award, the agency must carry the burden of proof that its position was reasonable in fact and law. No presumption arises that SBA's position was not substantially justified simply because it did not prevail in a given proceeding.

(b) Awards for fees and expenses incurred before the date on which a proceeding was initiated are allowable only if the applicant can demonstrate that they were reasonably incurred in preparation for the proceeding.

(c) Awards will be reduced or denied if the applicant has unduly or unreasonably protracted the proceeding or if other special circumstances make an award unjust.

§ 132.106 Awards against other agencies.

No other agency may intervene or otherwise participate as a party in proceedings in this agency covered by this part unless it has agreed that it will pay any fee awards for which this

agency determines it is liable under these rules, subject to judicial review.

Subpart B-Allowable Fees and
Expenses

§ 132.201 Attorney, agent and expert witness fees.

(a) Awards will be based on rates customarily charged by persons engaged in the business of acting as attorneys, agents and expert witnesses. Awards will be calculated on this basis for all fees and expenses actually incurred. If the services were provided by an employee of the applicant or were made available free or at a reduced rate, fees and expenses will be calculated at such reduced rate.

(b) Under the Act, an award for the fees of an attorney or agent may not exceed $75.00 per hour, regardless of the actual rates charged by the attorney or agent. An award for the fees, of an expert witness may not exceed $25 per hour, regardless of the actual rate charged by the witness.

(c) In determining the reasonableness of the fees sought for attorneys, agents or expert witnesses, the adjudication officer shall consider factors bearing on the request, such as:

(1) If the attorney, agent or witness is in private practice, his or her customary fee for like services;

(2) The prevailing rate for similar services in the community in which the attorney, agent or witness ordinarily performs services;

(3) The time actually spent in the representation of the applicant, and (4) The time reasonably spent in light of the difficulty and complexity of the issues in the proceedings.

§ 132.202 Studies, analyses, engineering reports, tests and projects.

The reasonable cost (or the reasonable portion of the cost) of any study, analysis, engineering report, test, project or similar matter prepared on behalf of a party may be awarded to the extent that:

(a) The charge for the services does not exceed the prevailing rate payable for similar services, and

(b) The study or other matter was necessary to the preparation of the party's case.

Subpart C-Form of Application

§ 132.301 Contents of basic application.

(a) Applications shall be in writing and shall contain (1) the name of the applicant and the identification of the proceeding, (2) a declaration that the applicant believes that it has prevailed, and an identification of each issue as to which the position of an agency or agencies in the proceeding was not substantially justified, (3) a statement of the applicant's type (in terms of the types of applicants described 132.104), (4) for each applicant other than an individual as defined in § 132.104, a statement of the numbers of its employees on the date on which the proceeding was initiated, (5) for each applicant other than an individual or a sole owner of an unincorporated business, a description of any affiliated individuals or entities, as the term affiliated is defined in § 132.104, or a statement that none exist, (6) where applicable, a statement that the applicant had a net worth not more than the ceiling established for its type, as of the date which the proceeding was initiated, and (7) any other matters that the applicant believes appropriate.

(b) Applications filed by a tax exempt organization described in § 132.104 shall also contain either (1) a statement that the applicant was listed, on the date of the initiation of the proceeding, in the then-current edition of IRS Bulletin 78, "Organizations qualified under section 170(c) of the Internal Revenue Code of 1954," or (2) if the applicant is a tax exempt religious organization not required to obtain a ruling from the Internal Revenue Service on its exempt status, a brief description of the organization and statement of the basis for its belief that it is exempt. Qualified tax exempt organizations are not required to file a statement of net worth.

(c) Applications filed by a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)) shall also include a copy of the cooperative's charter or articles of incorporation and of its bylaws. Qualified cooperatives are