[Federal Register Volume 60, Number 226 (Friday, November 24, 1995)]
[Proposed Rules]
[Pages 57965-57970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28445]
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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: 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its regulations, revising or eliminating any duplicative, outdated,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
[[Page 57966]]
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.
[[Page 57968]]
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