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: Final rule.

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

reform directive, the Small Business Administration completed a page-

by-page and line-by-line review of all of its existing regulations. As

a result, SBA now clarifies and streamlines its regulations, revising

or eliminating any duplicative, outdated, inconsistent or confusing

provisions. This rule reorganizes all of present Parts 101, 133, and

135 and consolidates them into one new rule. As part of this

streamlining process large portions of present Part 101 have been

removed from the regulations and will be published in the Federal

Register. Present Parts 133 and 135 are revised, updated and

consolidated with Part 101. Finally, the remaining sections are

rewritten into a straightforward ``plain English'' style of writing.

EFFECTIVE DATE: This rule is effective February 26, 1996.

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. This rule revises, amends, reorganizes, and consolidates

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

rule reorganizes Part 101 into four subparts and renumbers all

remaining sections to reflect this new configuration.

Proposed changes to Parts 101, 133, and 135 were published in the

Federal Register on November 24, 1995 (60 FR 57965). The public was

invited to comment during a thirty day comment period. SBA received no

comments concerning this part during that time period. Therefore, the

following final rule contains no changes to the proposed rule, except

minor typographical ones.

For a detailed description of the changes to each subpart and the

new organization of Part 101, please refer to SBA's proposed rules,

published at 60 FR 57965 (November 24, 1995).

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 rule will 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 consolidates three Parts of SBA's current

regulations, moves substantial amounts of general organizational

information from SBA's regulations to other sources, and rewrites the

remaining provisions into plain English. Contracting opportunities and

financial assistance for small business will not be affected by this

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. 35, SBA

certifies that this final rule contains no new reporting or record

keeping requirements. For purposes of Executive Order 12612, SBA

certifies that this rule will 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, and under the authority of 15

U.S.C. 634(b)(6), SBA hereby amends 13 CFR Chapter I as follows:

1. Part 101 is revised to read as follows:

PART 101--ADMINISTRATION

Subpart A--Overview

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 Private Counsel

101.200 When does SBA hire private counsel?

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

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Subpart C--Inspector General

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

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: 5 U.S.C. 552 and App. 3, secs. 2, 4(a), 6(a), and

9(a)(1)(T); 15 U.S.C. 633, 634, 687; 31 U.S.C. 6506; 44 U.S.C. 3512;

E.O. 12372 (July 14, 1982), 47 FR 30959, 3 CFR, 1982 Comp., p. 197,

as amended by E.O. 12416 (April 8, 1983), 48 FR 15887, 3 CFR, 1983

Comp., p. 186.

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.

(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, S.W., Washington,

D.C. 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 the Administrator and to the

Associate Administrator for Field Operations. 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, the Associate Administrator for Field

Operations, 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

Area Directors 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:

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(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 for those

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 to achieve national purposes.

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

Federal law--

(1) Instruments evidencing loans;

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

held by SBA or the Administrator such as

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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 uses 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 respect to the

forms 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, S.W., Washington, DC 20416.

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

of the Administrative Procedure Act?

Yes. Despite these exemptions, SBA will follow the public

participation requirements of the Administrative Procedure Act, 5

U.S.C. 553, 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 Private Counsel

Sec. 101.200 When does SBA hire private counsel?

(a) Business loans. SBA may hire private 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 private 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 private counsel's

employment?

(a) Private 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) Private counsel must adhere to the highest standards of

professional conduct and maintain confidentiality appropriate to the

attorney-client relationship.

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

Counsel (and designees).

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

approved by SBA. Contingency fee agreements may 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.

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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 (31 U.S.C. 6506 et seq.) which promotes

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.

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

subpart?

SBA publishes in the Federal Register a list of programs and

activities 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 intergovernmental review (providing it

consults with local elected officials before doing so) and then notify

the Administrator of the 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 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, 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.

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 12372

(3 CFR, 1982 Comp., p. 197), as amended by Executive Order 12416 (3

CFR, 1983 Comp., p. 186); 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.

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Dated: January 19, 1996.

Philip Lader,

Administrator.

[FR Doc. 96-1163 Filed 1-25-96; 8:45 am]

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