tor General, in the case of OIG grievances) for review, upon concurrence of the General Counsel (or the Counsel to the Inspector General in the case of OIG grievances), within such 15 day period, based on an allegation that the decision issued by the judge is contrary to law, regulation or Agency policy or is impracticable to implement, in which case the final decision shall be rendered by the Deputy Administrator (or Inspector General, as appropriate);

(2) Arbitrations arising under any pertinent labor agreement;

(3) Proceedings relative to the collection of debts owed to the Agency and to the United States, pursuant to the Debt Collection Act of 1982 and part 140 of this chapter.

(4) Proceedings relating to certain aspects of the Minority Small Business and Capital Ownership Development Program (8(a) Program), authorized by 15 U.S.C. 637(a) and implemented by part 124, subpart A of this chapter: program graduations, program terminations, program suspensions, denials of entrance based on a negative finding of social disadvantage, economic disadvantage, ownership or control, and waivers pursuant to § 124.317 of this chapter.

(b) Initial Decisions. Except as otherwise provided by statute, unless a petition for review has been filed pursuant to § 134.34(a) of this part or the Agency reviewing official has ordered review pursuant to § 134.34(b), an initial decision of the judge shall be deemed adopted by the reviewing official and shall be the final decision of the Agency 30 days after issuance, in the following proceedings:

(1) Proceedings relative to revocation or suspension of Small Business Investment Company licenses; cease and desist orders; and removal or suspension of directors and officers of licensees of Small Business Investment Companies, pursuant to the SBIA and part 107 of this chapter;

(2) Proceedings relative to violations of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000(d) et seq., and parts 112 or 113 of this chapter, and violations of the Equal Credit Opportunity Act of 1974, 15 U.S.C. 1601 et seq.; section 504 of the Rehabilitation

Act of 1973, as amended, 29 U.S.C. 794; Title VIII of the Civil Rights Act of 1968; Title IX of the Education Amendment of 1972, as amended, 20 U.S.C. 1681 et seq.; and section 4(b) of the Act, 15 U.S.C. 633(b), pursuant to part 113 of this chapter, alleged by a person who claims to have been excluded from participation in, denied the benefits of, or otherwise subjected to discrimination under any financial assistance activities of the Agency;

(3) Proceedings relative to the privilege of any applicant or agent to appear before the Agency, pursuant to 15 U.S.C. 634 and 642 et seq., and part 103 of this chapter;

(4) Proceedings relative to the eligibility of, or preferred or certified status of, any bank or non-bank lender to continue to participate in Agency loan programs, pursuant to 15 U.S.C 634(b)(6) et seq., and parts 120 and 122 of this chapter;

(5) Proceedings relative to the termination of surety bond program participants, pursuant to 15 U.S.C. 694(a) et seq., and part 115 of this chapter;

(6) Proceedings relative to the rights, privileges or obligations of development companies, pursuant to sections 501, 502, and 503 of the SBIA, 15 U.S.C. 687 et seq., and part 108 of this chapter;

(7) Proceedings to determine allowance of costs and fees, pursuant to the Equal Access to Justice Act, 5 U.S.C. 504 and part 132 of this chapter; and

(8) Proceedings relative to debarment from appearance before the Agency because of post-employment restrictions, pursuant to 18 U.S.C. 207(a) et seq., and part 105 of this chapter.

(c) Recommended Decisions. A recommended decision will be issued by the judge in contractor debarment and suspension proceedings, pursuant to Office of Federal Procurement Policy Letter 82-1 and § 125.11 of this chapter. A final decision by the Agency reviewing official shall be issued and become final in accordance with § 134.35 of this part.

[49 FR 33630, Aug. 24, 1984, as amended at 54 FR 34748, Aug. 21, 1989]

§ 134.33 Requests to reopen record.

(a) Clerical Errors. Clerical errors resulting from oversight or omission may be corrected by the judge at any time after the record has been closed, on his or her own initiative after notice to all parties or on motion of any party.

(b) New Evidence. If new and material evidence of decisional significance becomes available, which was not available to the moving party before issuance of the decision by the judge, despite due diligence, such party may move to reopen the record within 30 days of issuance of the decision. Such motion shall be directed to the judge by whom the proceeding was conducted.

§ 134.34 Petition for review of initial decision.

(a) By Petition. Any party may serve and file a petition for review with the Agency reviewing official identified in the applicable substantive regulations governing the proceeding, within 30 days of issuance of the initial decision. A petition for review shall set forth exceptions to the initial decision, supported by specific references to relevant law, regulations, Agency policy, and the record, and may be supported by a brief.

(b) By Order. The Agency reviewing official may issue an order on his or her own motion, within 30 days of issuance of the initial decision, directing that the case be placed on the docket for review and shall serve a copy of such order on all parties to the proceeding.

(c) Answer. Within ten days after the filing of the petition or order for review, any party may file an answer.

(d) Grounds for Review. The Agency reviewing official may grant a petition for review when it is established that: (1) The decision of the judge is based on an erroneous finding of fact or an erroneous interpretation or application of law, regulation or Agency policy; and

(2) Review is necessary and appropriate to ensure a just and proper disposition of the proceeding and to protect the interests of the parties.

(e) Order and Effective Date. After consideration of the record, the Agency reviewing official may:

(1) Affirm, reverse, or modify the initial decision, which action by the reviewing official shall be the final decision of the Agency, upon issuance;

(2) Remand the initial decision to the judge, with directions, for appropriate further proceedings; or

(3) Deny a petition for review summarily, in which case the decision of the judge shall forthwith become adopted by the reviewing official and shall become the final decision of the Agency.

§ 134.35 Recommended decisions.

(a) Exceptions. Any party may serve and file exceptions to the recommended decision with the Agency reviewing official identified in the applicable substantive regulations governing the proceeding, within 30 days of the issuance of the recommended decision.

(b) Contents. Such exceptions shall be supported by specific references to relevent law, regulations, Agency policy, and the record, and may be supported by a brief.

(c) Answers. Within ten days after filing of the exceptions, any party may file an answer.

(d) Order and Effective Date. After consideration of the record, the Agency reviewing official may:

(1) Adopt, reject, or modify the recommended decision, which action by the reviewing official shall be the final decision of the Agency, upon issuance;

(2) A grant, loan, or benefit from, the Administration, or any State, political subdivision of a State, or other party, if the United States Government provides any portion of the money or property under such contract or for such grant, loan, or benefit, or if the Government will be or is potentially liable to reimburse such State, political subdivision, or party for any portion of the money or property under such contract or for such grant, loan, or benefit.

§ 142.3 Basis for civil penalties and assessments.

(a) Claims

(1) Any person who makes a claim that the person knows or has reason to know

(i) Is false, fictitious, or fraudulent;

(ii) Includes or is supported by any written statement which asserts a material fact which is false, fictitious, or fraudulent;

(iii) Includes or is supported by any written statement that

(A) Omits a material fact;

(B) Is false, fictitious, or fraudulent as a result of such omission; and

(C) Is a statement in which the person making such statement has a duty to include such material fact; or

(iv) Is for payment for the provision of property or services which the person has not provided as claimed, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $5,000 for each such claim.

(2) Each voucher, invoice, claim form, or other individual request or demand for property, services, or money constitutes a separate claim.

(3) A claim shall be considered made to the Administration, recipient, or party to a contract with the Administration when such claim is actually made to an agent, fiscal intermediary, or other entity, including any State or political subdivision thereof, acting for or on behalf of the Administration, recipient, or party.

(4) Each claim for property, services, or money is subject to a civil penalty regardless of whether such property, services, or money is actually delivered or paid.

(5) If the Government has made any payment (including transferred property or provided services) on a claim, ä person subject to a civil penalty under paragraph (a)(1) of this section shall also be subject to an assessment of not more than twice the amount of such claim or that portion thereof that is determined to be in violation of paragraph (a)(1). Such assessment shall be in lieu of damages sustained by the Government because of such claim.

(b) Statements

(1) Any person who makes a written statement that

(i) The person knows or has reason to know

(A) Asserts a material fact which is false, fictitious, or fraudulent; or

(B) Is false, fictitious, or fraudulent because it omits a material fact that the person making the statement has a duty to include in such statement; and (ii) Contains or is accompanied by an express certification or affirmation of the truthfulness and accuracy of the contents of the statement, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $5,000 for each such statement.

(2) Each written representation, certification, or affirmation constitutes a separate statement.

(3) A statement shall be considered made to the Administration when such statement is actually made to an agent, fiscal intermediary, or other entity, including any State or political subdivision thereof, acting for or on behalf of the Administration.

(c) No proof of specific intent to defraud is required to establish liability under this section.

(d) In any case in which it is determined that more than one person is liable for making a claim or statement under this section, each such person may be held liable for a civil penalty.

(e) In any case in which it is determined that more than one person is liable for making a claim under this section on which the Government has made payment (including transferred property or provided services), an assessment may be imposed against any such person or jointly and severally against any combination of such per

sons.

1983 (48 FR 15887); Sec. 401 of the Intergovernmental Cooperation Act of 1968, as amended (31 U.S.C. 6506).

SOURCE: 48 FR 29387, June 24, 1983, unless otherwise noted.

EDITORIAL NOTE: For additional information, see related documents published at 47 FR 57369, December 23, 1982, 48 FR 17101, April 21, 1983, and 48 FR 29096, June 24, 1983.

§ 135.1

What is the purpose of these regulations?

(a) The regulations in this part implement Executive Order 12372, "Intergovernmental Review of Federal Programs," issued July 14, 1982 and amended on April 8, 1983. These regulations also implement applicable provisions of section 401 of the Intergovernmental Cooperation Act of 1968.

(b) These regulations are intended to foster an intergovernmental partnership and a strengthened Federalism by relying on State processes and on State, areawide, regional and local coordination for review of proposed Federal financial assistance and direct Federal development.

(c) These regulations are intended to aid the internal management of the Agency, and are not intended to create any right or benefit enforceable at law by a party against the Agency or its officers.

§ 135.2 What definitions apply to these regulations?

Agency or SBA means the U.S. Small Business Administration.

Order means Executive Order 12372, issued July 14, 1982, and amended April 8, 1983, and titled "Intergovernmental Review of Federal Programs."

Administrator means the Administrator of the U.S. Small Business Administration or an official or employee of the Agency acting for the Administrator under a delegation of authority.

State means any of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust Territory of the Pacific Islands.

§ 135.3

What programs and activities of the Agency are subject to these regulations?

The Administrator publishes in the FEDERAL REGISTER a list of the Agency's programs and activities that are subject to these regulations and identifies which of these are subject to the requirements of section 204 of the Demonstration Cities and Metropolitan Development Act.

§ 135.4 What are the Administrator's general responsibilities under the Order? (a) The Administrator provides opportunities for consultation by elected officials of those State and local governments that would provide the nonFederal funds for, or that would be directly affected by, proposed Federal financial assistance from, or direct Federal development by, the SBA.

(b) If a State adopts a process under the Order to review and coordinate proposed Federal financial assistance and direct Federal development, the Administrator, to the extent permitted by law:

(1) Uses the State process to determine official views of State and local elected officials;

(2) Communicates with State and local elected officials as early in a program planning cycle as is reasonably feasible to explain specific plans and actions;

(3) Makes efforts to accommodate State and local elected official's concerns with proposed Federal financial assistance and direct Federal development that are communicated through the State process;

(4) Allows the States to simplify and consolidate existing federally required State plan submissions;

(5) Where State planning and budg eting systems are sufficient and where permitted by law, encourages the substitution of State plans for federally required State plans;

(6) Seeks the coordination of views of affected State and local elected officials in one State with those of another State when proposed Federal financial assistance or direct Federal development has an impact on interstate metropolitan urban centers or other interstate areas; and

unrelated or were not submitted simultaneously, regardless of the amount of money or the value of property or services demanded or requested.

§ 142.7 Complaint.

(a) On or after the date the Department of Justice approves the issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the reviewing official may serve a complaint on the defendant and provide a copy to the Office of Hearings and Appeals, as provided in § 142.8.

(b) The complaint shall state(1) The

allegations of liability against the defendant, including the statutory basis for liability, an identification of the claims or statements that are the basis for the alleged liability, and the reasons why liability allegedly arises from such claims or statements;

(2) The maximum amount of penalties and assessments for which the defendant may be held liable;

(3) Instructions for filing an answer to request a hearing, including a specific statement of the defendant's right to request a hearing by filing an answer and to be represented by a representative; and

(4) That failure to file an answer within 30 days of service of the complaint will result in the imposition of the maximum amount of penalties and assessments without right to appeal, as provided in § 142.10.

(c) At the same time the reviewing official serves the complaint, he or she shall serve the defendant with a copy of these regulations.

§ 142.8 Service of complaint.

(a) Service of a complaint must be made by certified or registered mail or by delivery in any manner authorized by Rule 4(d) of the Federal Rules of Civil Procedure. Service is complete when made in accordance with the preceding sentence.

(b) Proof of service, stating the name and address of the person on whom the complaint was served, and the manner and date of service, may be made by

(1) Affidavit of the individual serving the complaint by delivery;

(2) A United States Postal Service return receipt card acknowledging receipt; or

(3) Written acknowledgment of receipt by the defendant or his or her representative.

§ 142.9 Answer.

(a) The defendant may request a hearing by filing an answer with the reviewing official and the Office of Hearings and Appeals within 30 days of service of the complaint. An answer shall be deemed to be a request for hearing.

(b) In the answer, the defendant— (1) Shall admit or deny each of the allegations of liability made in the complaint;

(2) Shall state any defense on which the defendant intends to rely;

(3) May state any reasons why the defendant contends that the penalties and assessments should be less than the statutory maximum; and

(4) Shall state the name, address, and telephone number of the person authorized by the defendant to act as defendant's representative, if any.

(c) If the defendant is unable to file an answer meeting the requirements of paragraph (b) of this section within the time provided, the defendant may, before the expiration of 30 days from service of the complaint, file with the reviewing official a general answer denying liability and requesting a hearing, and a request for an extension of time within which to file an answer meeting the requirements of paragraph (b) of this section. The reviewing official shall file promptly with the ALJ the complaint, the general answer denying liability, and the request for an extension of time as provided in § 142.11. For good cause shown, the ALJ may grant the defendant up to 30 additional days within which to file an answer meeting the requirements of paragraph (b) of this section.

§ 142.10 Default upon failure to file an

answer.

(a) If the defendant does not file an answer within the time prescribed in § 142.9(a), the reviewing official may refer the complaint to the ALJ.