ties may submit to the judge a settlement agreement that includes: (1) The basis for the agreement; (2) A statement of jurisdiction; (3) A provision that the settlement order will have the same force and effect as a decision issued in accordance with this part, except that it shall be final and may not be altered, modified, or set aside; (4) A waiver of further Agency proceedings and the right to seek judicial review or otherwise challenge the validity of the order; (5) A statement that the allegations in the petition, order to show cause or notice commencing the proceedings are fully resolved by the agreement and order; (6) Signatures of the parties to the agreement; and (7) A proposed order. (b) Action on Settlement Agreement. After considering the agreement and proposed order, the judge will, within 30 days: (1) Approve the settlement agreement and issue an order incorporating such agreement by reference; or (2) Reject the settlement agreement and issue an order notifying the parties of the resumption of the proceeding. (c) Continuance Pending Settlement. Any party may move to recess the proceeding for a reasonable time to permit negotiation of a settlement. The allowance of such continuance, and the duration thereof, is in the discretion of the judge. On or before the expiration of the time allowed for negotiations, the parties shall: (1) Submit the proposed settlement agreement to the judge for consideration; or (2) Inform the judge that an agreement cannot be reached so that the proceeding can be resumed. (d) Admissibility. A rejected settlement agreement and all negotiations relative thereto shall not be admissible in evidence. § 134.38 Ex Parte communications. Except to the extent required for the disposition of ex parte matters as authorized by law or this chapter, no person, party or employee of the Agency who performs any investiga tive or prosecutorial function in connection with a proceeding under this part shall consult or communicate with a judge concerning any fact or question of law or Agency precedent at issue in such proceeding, except on notice and opportunity for all parties to participate. In the event that such an unauthorized consultation or communication is initiated, the judge shall disclose that occurrence on the record with notice to the parties, either by filing therein a memorandum or by making a statement, if the transaction was oral, or by filing any writing delivered to him or her. When such a prohibited communication has been initiated by a party, the judge may give appropriate consideration to the imposition of such sanctions or remedial relief as the circumstances warrant. PART 135-INTERGOVERNMENTAL REVIEW OF SMALL BUSINESS ADMINISTRATION PROGRAMS AND ACTIVITIES Sec. 135.1 What is the purpose of these regulations? 135.2 What definitions apply to these regulations? 135.3 What programs and activities of the Agency are subject to these regulations? 135.4 What are the Administrator's general responsibilities under the Order? 135.5 What is the Administrator's obligation with respect to Federal interagency coordination? 135.6 What procedures apply to the selection of programs and activities under these regulations? 135.7 How does the Administrator communicate with State and local officials concerning the Agency's programs and activities? 135.8 How does the Administrator provide States an opportunity to comment on proposed Federal financial assistance and direct Federal development? 135.9 How does the Administrator receive and respond to comments? 135.10 How does the Administrator make efforts to accommodate intergovernmental concerns? 135.11 What are the Administrator's obligations in interstate situations? [Reserved] 135.12 135.13 May the Administrator waive any provision of these regulations? AUTHORITY: Executive Order 12372, July 14, 1982 (47 FR 30959), as amended April 8, agency determines it is liable under these rules, subject to judicial review. Subpart B-Allowable Fees and § 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 not required to file a statement of net worth. (d) All applications shall be signed by the applicant, or a responsible and knowledgeable official of an applicant that is not an individual. The individual signing the application shall state that the application and the statement of the net worth (if any) are true and complete to the best of his or her information and belief, and that he or she understands that the application and statement are official statements subject to section 1001 of the United States Criminal Code (18 U.S.C. 1001), which provides that making a false official statement is a felony punishable by fine and imprisonment. The individual signing the application shall also provide the address and telephone number at which he or she can be contacted to verify or explain any information in the application. § 132.302 Statements of net worth. (a) Each applicant except a qualified tax exempt organization or a qualified cooperative must submit with its application a detailed exhibit showing its net worth at the time the proceeding was initiated. If any individual, corporation, or other entity directly or indirectly controls or owns a majority of voting shares or other interest of the applicant, or if the applicant directly or indirectly owns or controls a majority of voting shares of other interest of any corporation or other entity, the exhibit must include a showing of the net worth of all such affiliates. The exhibit may be in any form convenient to the applicant, provided that it makes full disclosure of the applicant's and any affiliates' assets and liabilities and is sufficient to determine whether the applicant qualifies under the standards of 5 U.S.C. 504(b)(1)(B)(i). The adjudicative officer may require an applicant to file additional information to determine the applicant's eligibility for an award. (b) The net worth exhibit shall describe any transfers of assets from, or obligations incurred by, the applicant or any affiliate, occurring in the oneyear period prior to the date on which the proceeding was initiated, that reduced the net worth of the applicant and its affiliates below the applicable net worth ceiling. If there were no such transactions, the applicant shall so state. (c) The net worth exhibit shall not be included in the public record of the proceeding and may be excised from pleadings required to be served on all other parties to the proceeding in accordance with § 134.14(b) of this chapter. [47 FR 22085, May 21, 1982, as amended at 49 FR 33630, Aug. 24, 1984] § 132.303 Statements of fees and expenses. (a) All applications shall be accompanied by an itemized statement or statements of the fees and expenses of the attorneys, expert witnesses, and agents, incurred in connection with the proceeding, for which an award is sought out. (b) A separate itemized statement, showing the hours spent in work in connection with the proceeding by each individual and a description of what was accomplished, the rate at which fees were computed, the total amount claimed, and the total amount agreed to be paid by the applicant, must be submitted for each person, firm or other entity for which the applicant seeks an award. (c) The rules governing the allowance of fees and expenses, set forth in Subpart B of this part, shall be followed. Expenses must be verifiable in accordance with the standards published by the Internal Revenue Service for the documentation of business expenses. (d) Each separate statement must be verified by the person, firm or other entity performing services for which an award is sought, in accordance with the requirements set forth in paragraph (d) of § 132.301. Subpart D-Procedures for § 132.401 Filing and service of documents. All applications for an award of fees shall be filed in accordance with § 134.11(a) of this chapter. Service of such application shall commence the proceeding which shall thereafter be conducted in accordance with the provisions of part 134 by the adjudicative officer (i.e., an Administrative Law Judge of the Office of Hearings and Appeals), who shall issue an initial decision in the case. The Administrator shall be the reviewing official for purposes of § 134.34. [47 FR 22085, May 21, 1982, as amended at 49 FR 33630, Aug. 24, 1984] § 132.402 When applications can be filed. (a) The Act provides that an application for an award may not be made later than thirty days after final Agency action on the proceeding. This Agency does not have the power to allow exceptions for later filings, and thus the applicant must serve and file the application no later than 30 days after the Agency decision becomes final in accordance with § 134.32 of this chapter. (b) An application may be filed any time, before the last filing date as determined under paragraph (a) of this section, that the applicant believes that it has prevailed. An applicant has prevailed when the Agency has taken favorable action with respect either to the entire proceeding or to an ancillary or subsidiary issue in the proceeding that is sufficiently significant and discrete to merit treatment as a separate unit. [47 FR 22085, May 21, 1982, as amended at 49 FR 33630, Aug. 24, 1984] § 132.403 Decisions. The decision on the reasonableness of the amount requested shall include an explanation of the reasons for any difference between the amount requested and the amount awarded. The decision shall also include, if at issue, findings on whether the agency's position was substantially justified, whether the applicant unduly protracted the proceedings or whether other special circumstances make an award unjust. If the applicant has sought an award against more than one agency, the decision shall allocate responsibility for payment of any award made among the agencies, and shall explain the reasons for the allocation made. [47 FR 22085, May 21, 1982. Redesignated and amended at 49 FR 33630, Aug. 24, 1984] An applicant seeking payment of an award shall submit to the Controller of SBA a copy of the Agency's final award along with a statement that it will not seek review (or further review) of the agency decision, or on the award, in the United States courts. The Agency will pay the applicant the amount awarded within 60 days after receiving the applicant's submission, unless judicial review of the award or of the underlying decision of the adversary adjudication has been sought by the applicant or any other party to the proceeding. PART 133-INDEX TO APPROVED SBA REPORTING AND RECORDKEEPING REQUIREMENTS AUTHORITY: 44 U.S.C. 3512. § 133.1 Control numbers assigned by OMB under the Paperwork Reduction Act. (a) Purpose. This part collects and displays the control numbers and expiration dates assigned to the SBA reporting and recordkeeping requirements that have been approved by the Office of Management and Budget (OMB) according to the Paperwork Reduction Act. SBA intends that this part comply with the requirements of that Act and 5 CFR part 1320 to display a current control number assigned by the Director, OMB on each approved reporting and recordkeeping requirement. This part contains current OMB control numbers, expiration dates, regulatory cross-references, and, where applicable, form numbers. Where the reporting and recordkeeping requirements exist as documents separate from SBA regulations, they will also display the current OMB approval numbers. the Agency. For example, auxiliary aids useful for persons with impaired vision include readers, Brailled materials, audio recordings, and other similar services and devices. Auxiliary aids useful for persons with impaired hearing include telephone handset amplifiers, telephones compatible with hearing aids, telecommunication devices for deaf persons (TDD's), interpreters, notetakers, written materials, and other similar services and devices. Complete complaint means a written statement that contains the complainant's name and address and describes the Agency's alleged discriminatory actions in sufficient detail to inform the Agency of the nature and date of the alleged violation of section 504. It shall be signed by the complainant or by someone authorized to do so on his or her behalf. Complaints filed on behalf of classes or third parties shall describe or identify (by name, if possible) the alleged victims of discrimination. Facility means all or any portion of buildings, structures, equipment, roads, walks, parking lots, rolling stock or other conveyances, or other real or personal property. Individual with handicaps means any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. As used in this definition, the phrase: (1) Physical or mental impairment includes (i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or (ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, |