[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or eliminating any duplicative, outdated, inconsistent or confusing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:
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[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]
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