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 reIceive 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 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
Considering Applications

§ 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 deci

(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]

§132.404 Judicial review.

Judicial review of final agency decisions on awards may be obtained as provided in 5 U.S.C. 504(c)(2).

[47 FR 22085, May 21, 1982. Redesignated at 49 FR 33630, Aug. 24, 1984]

Subpart E-Payment

§132.501 Payment of awards.

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.

(b) Public protection. Any member of the public who has reason to believe any SBA office or agent is in violation of the Public Protection Clause of the Paperwork Reduction Act (44 U.S.C. 3512; 5 CFR 1320.5) should notify SBA's Single Agency Official. Direct comments to the Associate Deputy Administrator for Resource Management, 1441 L Street, NW., Washington, DC 20416. (c) Index to OMB-approved reporting and recordkeeping requirements.