[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2394-2398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1163]



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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or eliminating any duplicative, outdated, inconsistent or confusing 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? 


[[Page 2395]]


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:

BILLING CODE 8025-01-P
[GRAPHIC] [TIFF OMMITTED] TR26JA96.001


BILLING CODE 8025-01-C
    (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 

[[Page 2396]]
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. 

[[Page 2397]]


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.

 
[[Page 2398]]

    Dated: January 19, 1996.
Philip Lader,
Administrator.
[FR Doc. 96-1163 Filed 1-25-96; 8:45 am]
BILLING CODE 8025-01-P