Administration, Index to Approved SBA Reporting and Recordkeeping Requirements, and Intergovernmental Review of Small Business Administration Programs and Activities

SMALL BUSINESS ADMINISTRATION

13 CFR Parts 101, 133, and 135

Administration, Index to Approved SBA Reporting and Recordkeeping

Requirements, and Intergovernmental Review of Small Business

Administration Programs and Activities

AGENCY: Small Business Administration.

ACTION: Proposed rule.

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SUMMARY: In response to President Clinton's government-wide regulatory

reform directive, the Small Business Administration has completed a

page-by-page and line-by-line review of all of its existing

regulations. As a result, SBA is proposing to clarify and streamline

its regulations, revising or eliminating any duplicative, outdated,

inconsistent or confusing provisions. This proposed rule would

reorganize all of present Parts 101, 133, and 135 and consolidate them

into one new rule. As part of this streamlining process large portions

of present Part 101 will be removed from the regulations and published

in the U.S. Government Manual. Present Parts 133 and 135 will be

revised, updated and consolidated with Part 101. Finally, the remaining

sections have been rewritten into a straightforward ``plain English''

style of writing.

DATES: Comments must be submitted on or before December 26, 1995.

ADDRESSES: Written comments should be addressed to David R. Kohler,

Regulatory Reform Team Leader (101), U.S. Small Business

Administration, 409 3rd Street, SW., Suite 13, Washington, DC 20416.

FOR FURTHER INFORMATION CONTACT: Cheri C. Wolff, Chief Counsel for

General Litigation; Office of General Counsel, at (202) 205-6643.

SUPPLEMENTARY INFORMATION: On March 4, 1995, President Clinton issued a

Memorandum to Federal agencies directing them to simplify their

regulations and eliminate those that are unnecessary. In response to

this directive SBA completed a page-by-page, line-by-line review of all

of its existing regulations to determine which should be revised or

eliminated.

The proposed rule would revise, amend, reorganize, and consolidate

all of present 13 CFR Parts 101, 133, and 135. This proposed new

consolidated rule would reorganize Part 101 into four subparts and

renumber all remaining sections to reflect this new configuration.

Subpart ``A'' would cover the Agency's purpose, management, field

office functions, use of its seal, the application of Federal law to

SBA programs and activities, and what forms are authorized for public

use. SBA proposes to update, streamline and revise these provisions.

SBA proposes to eliminate the listing of specific program functions,

field office locations and all internal delegations of authority from

Part 101 as inappropriate for inclusion in regulatory form. The U.S.

Government Manual (a special edition of the Federal Register) contains

a listing of program functions. As required by the Freedom of

Information Act, SBA proposes to periodically publish field office

locations and all internal delegations of authority as a notice in the

Federal Register. Consistent with this change SBA proposes to include

in the list of internal delegations of authority its designation of a

debarring/suspending official for contractors doing business directly

with SBA. In addition, and pursuant to new OMB regulations (see the

Federal Register, Vol. 60, No. 110, pp. 30438-30456) SBA proposes to

eliminate the list of specific SBA reporting and recordkeeping

requirements approved by the Office of Management and Budget (OMB)

contained in present Part 133. In lieu of this Part, SBA proposes to

periodically publish an amended list of OMB approved reporting and

recordkeeping requirements utilized by SBA as a notice in the Federal

Register.

SBA proposes to eliminate present Sec. 101.6, ``Litigation'', as

unnecessary and to amend present Sec. 101.9, which waives or limits the

use of certain existing exemptions to the public participation

requirements of the Administrative Procedure Act (APA), has also been

amended. SBA proposes to eliminate the waiver of the ``agency

management and personnel'' exemption and the limitations placed on the

use of the ``good cause'' exemption as unnecessary and overbroad.

Congress has determined that agency management and personnel matters

have no significant substantive impact on the public and has

accordingly exempted them from the APA. By eliminating the agency

management and personnel exemption, SBA proposes to act consistently

with the Congressional determination. SBA will continue to have the

right to use the public participation procedures of APA for management

and personnel matters if the SBA deems it necessary or desirable. The

limitations presently placed on the use of the ``good cause'' exemption

are unnecessary since SBA does not promulgate the type of regulations

that require the use of this exemption. However, SBA proposes to

maintain the exemption for matters relating to ``public property,

loans, grants, benefits, or contracts'' as necessary and appropriate.

Subpart ``B'' would cover and update the provisions concerning the

employment of fee counsel by SBA. Subpart ``C'' would provide an

overview of the authority of the SBA Inspector General under the

Inspector General Act of 1978 and eliminate references to the

investigatory powers of the Administrator under the Small Business Act.

Congress transferred those powers

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to the Inspector General's Office in 1978. Subpart ``C'' would also

provide guidance on the service of Inspector General subpoenas

consistent with current policy. SBA proposes to eliminate present

sections 101.8-4 ``Non-Public formal investigation proceedings,''

101.8-5 ``Right to copy of data or transcript of testimony,'' and

101.8-8 ``Information obtained in investigations,'' as unnecessary and

redundant. Regulations promulgated under the Privacy Act, the Freedom

of Information Act, the Inspector General Act, and the Trade Secrets

Act, as well as the Federal Rules of Civil and Criminal Procedure,

already provide regulatory guidance on these matters. SBA proposes to

eliminate present sections 101.8-6, 101.8-7, and 101.8-10 relating to

counsel for witnesses and witness fees as outdated and obsolete.

Subpart ``D'' would cover intergovernmental partnership procedures

under the Intergovernmental Cooperation Act. These provisions are

currently contained in present Part 135. This proposed subpart would

streamline present Part 135 and consolidated it into Part 101, but

without changing existing procedures. SBA proposes to eliminate present

section 135.2, the definition section, as repetitive and unnecessary

with the exception of the definition of the word ``state''. SBA added

that definition in proposed section 101.402. SBA proposes to eliminate

present sections 135.4 and 135.5, relating to the responsibilities of

the Administrator, were eliminated since they are internal to SBA (and

are more appropriate for Agency Standard Operating Procedures) and

simply repeat the provisions of Executive Order No. 12372, as amended.

SBA also proposes to eliminate ``reserved'' sections.

SBA proposes to assign to change the numbers assigned to all

sections in the new rule to conform to the other parts of Title 13, to

rewrite the new rule in the more straightforward and customer-oriented

``plain English'' style of writing in order to assist the public in

reading and better understanding SBA's regulations. Finally, the

proposed rule establishes consistency in the use of certain titles. For

example, SBA proposes to change references to ``the Agency,'' ``the

Small Business Administration,'' and ``the Administration,'' in present

Part 101 to ``SBA,'' and references to ``Central Office,'' to

``Headquarters.'' SBA has also established uniformity in punctuation

and capitalization.

Section by Section Analysis

The following is an analysis of the new provisions of SBA's

regulations and a discussion of the substantive effect of these

changes, if any--

Proposed Section 101.100: SBA has expanded this provision from the

present paragraph 101.1(a) to include a reference to SBA's role in

providing financial, contractual, and business development assistance

to small business concerns. The U.S. Government manual already

publishes a detailed description of SBA's program functions and,

therefore, the same information needs not be included in SBA's

regulations.

Proposed Section 101.101: This provision would combine the

description of management contained in present paragraph 101.1(c) with

the list of the Administrator's responsibilities contained in present

section 101.2. SBA proposes to rewrite the provision in plain English.

SBA proposes to place the reference to the Deputy Administrator into a

separate paragraph and to note that the Deputy is now appointed by the

President.

Proposed Section 101.102: This section would set forth the current

address of SBA's Headquarters in Washington, DC, which is presently in

Sec. 101.1(c).

Proposed Section 101.103: SBA proposes to abolish present section

101.3-1, which contains the list of SBA field offices, their addresses,

phone numbers, and areas served. Instead, SBA will periodically publish

this information as a notice in the Federal Register. The proposed

provision refers the reader to the Federal Register and lists SBA's 800

number so customers can quickly and easily obtain the address and phone

number of the SBA field office near them.

Proposed Section 101.104: This provision would be substantially the

same as present section 101.3. However, SBA proposes to amend the text

to reflect the regional offices' new limited role, the elimination of

post-of-duty offices, and the existence of disaster area offices. SBA

has rewritten proposed section in plain English.

Proposed Section 101.105: This provision is substantially the same

as present section 101.5. However, SBA has added the Disaster Area

Directors to the list of SBA officials with the authority to use SBA's

official seal and rewritten the section in plain English.

Proposed Section 101.106: SBA has rewritten this provision, which

is currently in Sec. 101.1, in plain English and has made minor

substantive changes to reflect recent case law concerning attempts to

use state or local law to defeat liability incurred in obtaining or

assuring SBA benefits or assistance. SBA has added contracts or

agreements to which SBA is a party, unless explicitly provided

otherwise (see proposed Sec. 101.106(b)(4)) to the list of documents or

transactions that are construed and enforced in accordance with Federal

law.

Proposed Section 101.107: SBA has consolidated present section

101.4 with present 13 CFR Part 133 in this provision and has rewritten

it in plain English. SBA proposes to eliminate present Sec. 133.1(a), a

statement of intent. Moreover, pursuant to new OMB regulations, SBA

proposes to eliminate the list of specific SBA reporting and

recordkeeping requirements approved by OMB (present Sec. 133.1(c)).

Instead, SBA will periodically publish an amended list as a notice in

the Federal Register.

Proposed Section 101.108: This provision is an amended version of

present Sec. 101.9. Presently, through Sec. 101.9, SBA has waived the

exemptions to the public participation requirements of the

Administrative Procedure Act (5 U.S.C. 553) contained in subparagraph

(a)(2), for matters ``relating to agency management or personnel or to

public property, loans, grants, benefits, or contracts.'' Consistent

with other Federal departments and agencies that have voluntarily

waived exemptions to the Act, SBA has determined that the only

exemption that should exclude substantive rule-making from the public

participation procedures of the APA is the exemption relating to

``agency management or personnel.'' Consequently, the proposed

provision would maintain the waiver for matters relating to public

property, loans, grants, benefits, or contracts, while eliminating the

rest of present Sec. 101.9.

Proposed Section 101.109: With the adoption of the plain English

``question and answer'' format for many SBA regulations, it was

necessary to make it clear that each section heading is to be

interpreted as a part of the regulation. This section would state so

explicitly.

Proposed Section 101.200: SBA has substantially reduced this

provision in size and scope from present Sec. 101.7 (a) & (b), and

rewritten it in plain English. SBA eliminated the references to the

employment of full time SBA attorneys and the private representation of

applicants and borrowers as unnecessary and inconsistent with the

purpose of the section.

Proposed Section 101.201: SBA has rewritten this provision, which

replaces present Sec. 101.7 (c) & (d), in plain English. However, SBA

has not changed the substance of the duties and compensation provisions

of the present paragraphs.

[[Page 57967]]

Proposed Section 101.300: This provision replaces present section

101.8-1 which fails to mention the investigatory authority granted to

the Inspector General of SBA under the Inspector General Act of 1978.

This provision states that the Inspector General has full authority to

provide policy direction for, and to conduct audits, investigations,

and inspections concerning the administration of SBA programs and

operations.

Proposed Section 101.301: This provision states that all

information or allegations of waste, fraud, or abuse in regard to SBA

programs and operations should be directed to the Office of Inspector

General.

Proposed Section 101.302: This provision recites the scope of

authority, or specific powers, the Inspector General possesses under

the Inspector General Act and has been written in plain English.

Proposed Section 101.303: SBA has rewritten this provision in plain

English and amended it to reflect current policy relating to the

service of Inspector General subpoenas, but it is otherwise the same as

present Sec. 101.8-9.

Proposed Section 101.400: This provision is an amended version of

present section 135.1, and states the purpose of the regulations

contained in proposed Subpart D. SBA has rewritten it in plain English.

Proposed Section 101.401: This provision is the same as present

section 135.3 with only minor changes.

Proposed Section 101.402: This provision is the same as present

section 135.6 except that SBA has rewritten it in plain English and has

defined ``state'' at the end of the section.

Proposed Section 101.403: This provision combines present sections

135.7 and 135.8 into one new section concerning the notice and comment

procedures established by SBA under the Intergovernmental Cooperation

Act. SBA has rewritten the proposed section in plain English.

Proposed Section 101.404: This provision is the same as present

section 135.9 except that SBA has rewritten it in plain English.

Proposed Section 101.405: This provision is the same as present

section 135.10 except that it has been rewritten in plain English.

Proposed Section 101.406: This provision is the same as present

section 135.11 except that it has been rewritten in plain English.

Proposed Section 101.407: This provision is the same as present

section 135.13 except that it has been rewritten in plain English.

Compliance With Executive Orders 12612, 12778, and 12866, the

Regulatory Flexibility Act (5 U.S.C. 601, et seq.), and the Paperwork

Reduction Act (44 U.S.C. 35)

SBA certifies that this proposed rule would not have a significant

economic impact on a substantial number of small entities within the

meaning of Executive Order #12866 or the Regulatory Flexibility Act, 5

U.S.C. 601, et seq. This rule will consolidate three Parts of SBA's

current regulations, move substantial amounts of general organizational

information from SBA's regulations to the U.S. Government Manual, and

rewrite the remaining provisions into plain English. Contracting

opportunities and financial assistance for small business would not be

affected by this proposed rule. Therefore, it is not likely to have an

annual economic effect of $100 million or more, result in a major

increase in costs or prices, or have a significant adverse effect on

competition or the United States economy.

For purposes of the Paperwork Reduction Act, 44 U.S.C. Sec. 35, SBA

certifies that this proposed rule, if adopted in final form, would

contain no new reporting or record keeping requirements. For purposes

of Executive Order #12612, SBA certifies that this rule would not have

any federalism implications warranting the preparation of a Federalism

Assessment. For purposes of Executive Order #12778, SBA certifies that

this rule is drafted, to the extent practicable, in accordance with the

standards set forth in Section 2 of that Order.

List of Subjects

13 CFR Part 101

Administrative practice and procedure; Authority delegations

(Government agencies); Investigations; Organization and functions

(Government agencies); Reporting and recordkeeping requirements.

13 CFR Part 133

Reporting and recordkeeping requirements.

13 CFR Part 135

Intergovernmental relations.

For the reasons set forth above, SBA hereby proposes to amend 13

CFR Chapter I as follows:

1. Part 101 would be revised to read as follows:

PART 101--ADMINISTRATION

Subpart A--Overview

Sec.

101.100 What is the purpose of SBA?

101.101 Who manages SBA?

101.102 Where is SBA's Headquarters located?

101.103 Where are SBA's field offices located?

101.104 What are the functions of SBA's field offices?

101.105 Who may use SBA's official seal and for what purposes?

101.106 Does Federal law apply to SBA programs and activities?

101.107 What SBA forms are authorized for public use?

101.108 Has SBA waived any of the public participation exemptions

of the Administrative Procedure Act?

101.109 Do SBA regulations include the section headings?

Subpart B--Employment of Fee Counsel

Sec.

101.200 When does SBA hire fee counsel?

101.201 What are the minimum terms of fee counsel's employment?

Subpart C--Inspector General

Sec.

101.300 What is the Inspector General's authority to conduct

audits, investigations, and inspections?

101.301 Who should receive information or allegations of waste,

fraud, and abuse?

101.302 What is the scope of the Inspector General's authority?

101.303 How are Inspector General subpoenas served?

Subpart D--Intergovernmental Partnership

Sec.

101.400 What is the purpose of this subpart?

101.401 What programs and activities of SBA are subject to this

subpart?

101.402 What procedures apply to the selection of SBA programs and

activities?

101.403 What are the notice and comment procedures?

101.404 How does the Administrator receive comments?

101.405 How does the Administrator respond to comments?

101.406 What are the Administrator's responsibilities in interstate

situations?

101.407 May the Administrator waive these regulations?

Authority: Secs. 4 and 5, Pub. L. 85-536, 72 Stat. 384 and 385

(15 U.S.C. 633 and 634, as amended); sec. 308, Pub. L. 85-699, 72

Stat. 694 (15 U.S.C. 687, as amended); sec. 5(b)(11), Pub. L. 93-

386; sec. 306, Pub. L. 98-270, 98 Stat. 161; Pub. L. 96-511, sec. 5,

94 Stat. 2826 (44 U.S.C. 3512, as amended); 5 U.S.C. 552 as amended;

sec. 3(1), Pub. L. 93-386, 88 Stat. 742 (15 U.S.C. 634(b)(11), as

amended); Pub. L. 95-452, 92 Stat. 1101 (5 U.S.C. App. 3 secs. 2,

4(a), 6(a), and 9(a)(1)(T), as amended); Executive Order 12372, July

14, 1982 (47 FR 30959), as amended April 8, 1983 (48 FR 15887); sec.

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401, Pub. L. 90-577, 82 Stat. 1103 (31 U.S.C. 6506, as amended); unless

otherwise noted.

PART 101--ADMINISTRATION

Subpart A--Overview

Sec. 101.100 What is the purpose of SBA?

The U.S. Small Business Administration (SBA) aids, counsels,

assists, and protects the interests of small business concerns, and

advocates on their behalf within the Government. It also helps victims

of disasters. It provides financial assistance, contractual assistance,

and business development assistance. For a more detailed description of

the functions of SBA see The United States Government Manual, a special

publication of the Federal Register; which is available from

Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250-

7954.

Sec. 101.101 Who manages SBA?

(a) An Administrator, appointed by the President with the advice

and consent of the Senate, manages SBA. The Administrator--

(1) Is responsible to the President and Congress for exercising

direction, authority, and control over SBA.

(2) Determines and approves all policies covering SBA's programs to

aid, counsel, assist, and protect the interests of the nation's small

businesses.

(3) Employs or appoints employees necessary to implement the Small

Business Act, as amended, the Small Business Investment Act, as

amended, and other laws and directives.

(4) Delegates certain activities, by issuing regulations or

otherwise, to Headquarters and field positions (see The United States

Government Manual, a special publication of the Federal Register, which

is available from Superintendent of Documents, P.O. Box 371954,

Pittsburgh, PA 15250-7954.

(b) A Deputy Administrator, appointed by the President with the

advice and consent of the Senate, serves as Acting Administrator during

the absence or disability of the Administrator or in the event of a

vacancy in the Office of the Administrator.

Sec. 101.102 Where is SBA's Headquarters located?

The Headquarters of SBA is at 409 3rd Street, SW., Washington, DC

20416.

Sec. 101.103 Where are SBA field offices located?

A list of SBA's field offices with addresses, phone numbers and

jurisdictions served is periodically published in the Federal Register.

You can also obtain the address and phone number of an SBA office to

serve you by calling 1-800-8-ASK-SBA or 1-800-827-5722.

Sec. 101.104 What are the functions of SBA field offices?

(a) Regional offices. Regional offices are managed by a Regional

Administrator who is responsible to Headquarters. They are located in

major cities and have geographical boundaries which cover multi-state

areas. Regional offices exercise limited authority over field

activities within their region.

(b) District offices. District offices are managed by a District

Director and are located in cities within a region. District offices

are responsible to Headquarters and to a regional office. Within their

delegated authority, district offices have authority for--

(1) Conducting all program delivery activities within the district

boundaries;

(2) Supervising all branch offices located within the district

boundaries; and

(3) Providing subordinate branch offices with the technical

capability necessary to execute assigned programs.

(c) Branch offices. Branch offices are managed by a Branch Manager

and are located in cities within a district. Branch offices are

responsible to the district office within whose boundaries it is

located. Branch offices execute one or more elements of the business or

disaster loan programs and have limited authority for program

execution.

(d) Disaster area offices. Disaster area offices are managed by an

Area Director and are located in cities within defined geographical

areas. Disaster area offices are responsible to Headquarters and

provide loan services to victims of declared disasters. Temporary

disaster offices are often established in areas where disasters have

occurred.

(e) Responsibilities. Each field office has responsibilities within

a defined geographical area as periodically set forth in the Federal

Register.

Sec. 101.105 Who may use SBA's official seal and for what purposes?

(a) The SBA's seal shall be in a manner and form set forth as

follows:

Note: The seal is not published in this proposed rule, but will

appear in the final rule.

(b) The Administrator, Deputy Administrator, General Counsel,

Assistant Administrator for Administration, Assistant Administrator for

Hearings and Appeals, Associate Administrator for Minority Enterprise

Development, Regional Administrators, District Directors, Branch

Managers, the Inspector General, and Disaster Area Directors are

authorized to--

(1) Certify and authenticate originals and copies of any books,

records, papers, or other documents on file within SBA, or extracts

taken from them.

(2) Certify the nonexistence of records.

(3) Affix the Seal of SBA to all such certifications, including the

purposes authorized by 28 U.S.C. 1733.

Sec. 101.106 Does Federal law apply to SBA programs and activities?

(a) SBA makes loans and provides other services that are authorized

and executed under Federal programs adopted by Congress to achieve

national purposes.

(b) The following are construed and enforced in accordance with

Federal law--

(1) Instruments evidencing a loan;

(2) Security interests in real or personal property payable to or

held by SBA or the Administrator such as promissory notes, bonds,

guarantee agreements, mortgages, and deeds of trust;

(3) Other evidences of debt or security;

(4) Contracts or agreements to which SBA is a party, unless

expressly provided otherwise.

(c) To the extent feasible, SBA uses local or state procedures,

especially for recordation and notification purposes, in implementing

and facilitating SBA's loan programs. This use of local or state

procedures is not a waiver by SBA of any Federal immunity from any

local or state control, penalty, tax, or liability.

(d) No person, corporation, or organization that applies for and

receives any benefit or assistance from SBA, or that offers any

assurance or security upon which SBA relies for the granting of such

benefit or assistance, is entitled to claim or assert any local or

state law to defeat the obligation incurred in obtaining or assuring

such Federal benefit or assistance.

Sec. 101.107 What SBA forms are approved for public use?

(a) SBA utilizes forms approved by the Office of Management and

Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501

et seq.), as amended. You may obtain approved forms for use by the

public when applying for or obtaining SBA assistance, or when providing

services for SBA, from any field office (see Sec. 101.103). You may

also use forms which you have prepared yourself, or have obtained from

another source, if those forms are identical in every

[[Page 57969]]

respect to the form approved by OMB for the same purpose.

(b) 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 and see 5 CFR 1320.6) should

notify SBA. Direct such comments to the Assistant Administrator for

Administration at 409 3rd Street, SW., Washington, DC 20416.

Sec. 101.108 Has SBA waived any of the public participation exemptions

of the Administrative Procedure Act?

Yes. The public participation requirements prescribed by the

Administrative Procedure Act, 5 U.S.C. 553, will be followed by SBA in

rulemakings relating to public property, loans, grants, benefits, or

contracts.

Sec. 101.109 Do SBA regulations include the section headings?

Yes. All SBA regulations must be interpreted as including the

section headings.

Subpart B--Employment of Fee Counsel

Sec. 101.200 When does SBA hire fee counsel?

(a) Business Loans. SBA may hire fee counsel to represent it in

regard to business loans when the volume of activity in an area is not

sufficient to require a full-time SBA employee, or the area is too

remote for economical use of a full-time SBA employee.

(b) Disaster Loans. SBA may hire fee counsel in regard to disaster

loans when the disaster presents an emergency and a volume of activity

that cannot be promptly and economically serviced by available SBA

employees.

Sec. 101.201 What are the minimum terms of fee counsel's employment?

(a) Fee counsel must perform all requested work in compliance with

SBA's regulations, policies, and instructions, and take such action as

is legally required under the Small Business Act, the Small Business

Investment Act, and other laws applicable to SBA.

(b) Fee counsel must adhere to the highest standards of

professional conduct and maintain appropriate confidentiality proper to

the attorney-client relationship.

(c) Fee counsel acts under the supervision of the SBA General

Counsel (and designees.)

(d) Fee counsel usually is compensated at an hourly rate as

approved by SBA. Contingency fee agreements may occasionally be used if

approved by the General Counsel.

(e) Either party may terminate the employment upon written notice.

Subpart C--Inspector General

Sec. 101.300 What is the Inspector General's authority to conduct

audits, investigations, and inspections?

The Inspector General Act of 1978, as amended (5 U.S.C. App. 3)

authorizes SBA's Inspector General to provide policy direction for, and

to conduct, supervise, and coordinate such audits, investigations, and

inspections relating to the programs and operations of SBA as appears

necessary or desirable.

Sec. 101.301 Who should receive information or allegations of waste,

fraud and abuse?

The Office of Inspector General should receive all information or

allegations of waste, fraud, or abuse regarding SBA programs and

operations.

Sec. 101.302 What is the scope of the Inspector General's authority?

To obtain the necessary information and evidence, the Inspector

General (and designees) have the right to:

(a) Have access to all records, reports, audits, reviews,

documents, papers, recommendations, and other materials available to

SBA and relating to SBA's programs and operations;

(b) Require by subpoena the production of all information,

documents, reports, answers, records, accounts, papers, and other data

and documentary evidence;

(c) Administer oaths and affirmations or take affidavits; and

(d) Request information or assistance from any Federal, state, or

local government agency or unit.

Sec. 101.303 How are Inspector General subpoenas served?

(a) Service of subpoenas may be effected by any of the following

means--

(1) If by mail, a copy of the subpoena must be addressed to the

person, partnership, corporation, or unincorporated association to be

served at a residence or usual dwelling place, or a principal office or

place of business, and mailed first class by registered or certified

mail, (postage prepaid, return receipt requested), or by a commercial

or U.S. Postal Service overnight or express delivery service.

(2) If by personal delivery, a copy of the subpoena must be

delivered to the person to be served, or to a member of the partnership

to be served, or to an executive officer or a director of the

corporation or unincorporated association to be served, or to a person

authorized by appointment or by law to receive process for the person

or entity named in the subpoena.

(3) If by delivery to an address, a copy of the subpoena must be

left at the principal office or place of business of the person,

partnership, corporation, or unincorporated association to be served,

or at the residence or usual dwelling place of the person, member of

the partnership, or officer or director of the corporation or

unincorporated association to be served, with someone of suitable age

and discretion.

(b) Proof of service--

(1) When service is by registered, certified, overnight, or express

mail, it is complete upon delivery of the document by the Postal

Service or commercial service.

(2) The return Postal Service receipt for a document that was

registered or certified and mailed, the signed receipt for a document

delivered by an overnight or express delivery service, or the Return of

Service completed by the individual serving the subpoena by personal

delivery shall be proof of service.

Subpart D--Intergovernmental Partnership

Sec. 101.400 What is the purpose of this subpart?

(a) This subpart implements section 401 of the Intergovernmental

Cooperation Act. Section 401 creates intergovernmental partnership and

strengthens Federalism by relying on state processes and state, area-

wide, regional, and local coordination for the review of proposed

Federal financial assistance and direct Federal development.

(b) While guiding SBA's management, this subpart does not create

any right or benefit enforceable at law against SBA or its officers or

employees.

Sec. 101.401 What programs and activities of SBA are subject to this

subpart?

The Administrator publishes in the Federal Register a list of SBA's

programs and activities that are subject to this subpart.

Sec. 101.402 What procedures apply to the selection of SBA programs

and activities?

(a) A state may--

(1) Select any program or activity published in the Federal

Register under Sec. 101.401 for inter-governmental review (each state,

before selecting programs and activities, should consult with local

elected officials. A state adopting a process must notify the

Administrator of the SBA programs and activities selected); and

(2) Notify the Administrator of changes in its selections at any

time. For each change, the state submits to the Administrator an

assurance that it

[[Page 57970]]

consulted with local elected officials regarding the change.

(b) SBA may establish deadlines by which states must inform the

Administrator of changes in their program selections.

(c) After receiving notice of a state's selections, the

Administrator uses a state's process as soon as feasible depending on

individual programs and activities.

(d) ``State'' means any of the 50 States, 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.

Sec. 101.403 What are the notice and comment procedures?

(a) The Administrator provides notice to directly affected state,

area-wide, regional, and local entities in a state of proposed SBA

financial assistance or direct SBA development if--

(1) The state has not adopted a process under Executive Order No.

12372; or

(2) The assistance or development involves a program or activity

not selected for the state process.

(b) Notice may be made by publication in the Federal Register or

other means as SBA deems appropriate.

(c) Except in unusual circumstances the Administrator gives state

processes or directly affected state, area-wide, regional, and local

officials and entities at least 60 days to comment on proposed SBA

financial assistance or direct SBA development.

(d) In cases where SBA delegates the review, coordination, and

communication authority under this subpart, this section also applies.

Sec. 101.404 How does the Administrator receive comments?

(a) The Administrator follows the procedures of Sec. 101.405 if--

(1) A state office or official is designated to act as a single

point of contact between a state process and all Federal agencies; and

(2) That office or official transmits a state process

recommendation for a program selected under Sec. 101.402(a).

(b)(1) The single point of contact is not obligated to transmit

comments from state, area-wide, regional, or local officials and

entities where there is no state process recommendation.

(2) If a state process recommendation is transmitted by a single

point of contact, all comments from state, area-wide, regional, and

local officials and entities that differ from it must also be

transmitted.

(c) If a state has not established a process, or is unable to

submit a state process recommendation, state, area-wide, regional, and

local officials and entities may submit comments to SBA.

(d) If a program or activity is not selected for a state process,

state, area-wide, regional, and local officials and entities may submit

comments to SBA. In addition, if a state process recommendation for a

non-selected program or activity is transmitted to SBA by the single

point of contact, the Administrator follows the procedures of

Sec. 101.405.

(e) The Administrator considers comments which do not constitute a

state process recommendation submitted under this subpart and for which

the Administrator is not required to apply the procedures of

Sec. 101.405 when such comments are provided by a single point of

contact directly to SBA by a commenting party.

Sec. 101.405 How does the Administrator respond to comments?

(a) If a state process provides a recommendation to SBA through its

single point of contact, the Administrator

(1) Accepts the recommendation; or

(2) Reaches a mutually agreeable solution with the state process;

or

(3) Provides the single point of contact with a written explanation

of the decision in a form the Administrator deems appropriate. The

Administrator may also supplement the written explanation by telephone

or other means.

(b) In any explanation under paragraph (a)(3) of this section, the

Administrator informs the single point of contact that--

(1) SBA will not implement its decision for at least 10 days after

the single point of contact receives the explanation; or

(2) Because of unusual circumstances the waiting period of at least

10 days is not feasible.

(c) For purposes of computing the waiting period under paragraph

(b)(1) of this section, a single point of contact is presumed to have

received written notification 5 days after the date of mailing.

Sec. 101.406 What are the Administrator's responsibilities in

interstate situations?

The Administrator is responsible for--

(a) Identifying proposed SBA financial assistance and direct SBA

development that have an impact on interstate areas;

(b) Notifying appropriate officials and entities in states which

have adopted a process and selected an SBA program or activity;

(c) Making efforts to identify and notify the affected state, area-

wide, regional, and local officials and entities in states that have

not adopted a process or selected an SBA program or activity;

(d) Using the procedures of Sec. 101.405 if a recommendation of a

designated area-wide agency is transmitted by a single point of contact

in cases in which the review, coordination, and communication with SBA

has been delegated; and

(e) Using the procedures of Sec. 101.405 if a state process

provides a state recommendation to SBA through a single point of

contact.

Sec. 101.407 May the Administrator waive these regulations?

The Administrator may waive any provision of Secs. 101.400 through

and including 101.406 in an emergency.

PARTS 133 AND 135--[REMOVED]

2. Parts 133 and 135 are removed.

Dated: November 11, 1995.

Philip Lader,

Administrator.

[FR Doc. 95-28445 Filed 11-22-95; 8:45 am]

BILLING CODE 8025-01-P