e. Deputy District Director. f. District Counsel. PART IX-ELIGIBILITY AND SIZE DETERMINATIONS Section A-Eligibility Determinations 1. Eligibility Determination Authority. In accordance with Small Business Administration standards policies, to determine eligibility of applicants for assistance under any program of the Agency: EXCEPT the SBIC program. a. Regional Administrator. b. Deputy Regional Administrator c. All officials having the authority and assigned responsibility to take final action on the assistance requested. Section B-Size Determinations 1. Size Determination Authority. In accordance with Small Business Administration's Small Business Size Standards Regulations, to make initial size determinations of applicants for assistance under any program of the Agency: a. Regional Administrator. b. Deputy Regional Administrator. c. All other officials having authority and assigned responsibility to take final action on the assistance requested, EXCEPT the SBIC program and Government procurement and sales activities. 2. Size Determinations for Government Procurement and Sales. In accordance with Small Business Administration's Small Business Size Standards Regulations, to make size determinations for government procurement and sales activities. a. Regional Administrator. b. Deputy Regional Administrator. C. Assistant Regional P&TA, except Reg. X. d. Assistant Regional ME&PA, Reg. X only. Administrator/ Administrator/ e. Chief, Procurement and Technical Assistance, Reg. II only. PART X-ADMINISTRATIVE 1. Authority to purchase, rent, or contract for equipment, services and supplies for the agency in amounts not to be exceeded. No agency field office personnel may purchase goods or services or enter into contracts without a certificate of appointment specific to that individual issued by the Internal Procurement Executive. Regional Administrators as heads of contracting activities are exempt from this requirement for a certificate of appointment. a. Purchase Reproductions of Loan Documents. To purchase reproductions of loan documents, chargeable to the revolving fund, requested by U.S. Attorneys in foreclosure cases. b. Office Supplies and Equipment. To purchase office supplies and equipment and rent regular office equipment and furnishings; contract for repair and maintenance of equipment and furnishings; contract for printing (Government sources only); contract for services required in setting up and dismantling and moving SBA exhibits; and issue Government bills of lading pursuant to Chapter 4 of Title 41, United States Code, as amended, subject to the limitations contained in section 257 (a) and (b) of the Chapter. c. Rental of Motor Vehicles. To rent motor vehicles when not furnished by this Administration. d. Rental of Conference Space. To rent temporarily SBA conference space located within the respective geographical jurisdictions. e. Contract for Services. To contract for services for the agency pursuant to Chapter 4 of Title 41, United States Code, subject to the limitations contained in section 257 (a) and (b) of that Chapter. Each individual who has a certificate of appointment to purchase goods or services or enter into contract has a dollar limit inherent in the certificate of appointment. The certificate of appointment limit determines the amount that person may procure. Regional Administrators are limited to $25,000 on open market and up to the maximum order limitation (MOL) on Federal Supply Schedule under this section. 2. Use of Seal of the Small Business Administration. To certify true copies of any books, records, papers, or other documents on file with the Small Business Administration; to certify extracts from such material; to certify the nonexistence of records on files; and to cause the Seal of the Small Business Administration to be affixed to all such certification. a. Regional Administrators. b. District Directors. c. Branch Managers. PART XI-REDELEGATION AUTHORITY Section A-Redelegation 1. The authority delegated herein may not be redelegated. 2. The authority delegated herein may be exercised by any SBA employee designated as acting in a position designated herein, except that procurement authority requiring a certificate of appointment does not reside in a person acting in a designated position unless that acting individual also holds a certificate of appointment. Procurement certificate of appointments are to individuals, not positions. 3. Regional Administrators, Deputy Regional Administrators, District Directors, and Branch Managers may withhold or The Administrator, Assistant Administrator for Administration, Inspector General, Regional and District Directors, and Branch Managers are authorized to certify and authenticate as true, originals and copies of any books, records, papers, or other documents on file within the Small Business Administration; to certify and authenticate as true, originals, and copies of extracts from such material; to certify and authenticate as true, originals and copies of extracts from such material; to certify the nonexistence of records on file; and to cause the Seal of the Small Business Administration to be affixed to all such certifications for all purposes, including the purposes authorized by 28 U.S.C. 1733. This authority applies to any books, records, papers, or other documents on file within their respective jurisdictions. [47 FR 2074, Jan. 14, 1982, as amended at 51 FR 14979, Apr. 22, 1986] § 101.6 Litigation. Service of process in any suit instituted against SBA may be accomplished in accordance with the provisions of Rule 4 of the Federal Rules of Civil Procedure or in accordance with the provisions of section 2410 of title 28, United States Code. All litigation instituted by or against SBA will be prosecuted or defended by the Attorney General through the United States Attorney for the Federal District in which the matter arises. § 101.7 Employment of fee counsel. (a) Business loans. SBA employs attorneys on a full-time basis in most of its field offices and these employees usually perform all the legal services requested on behalf of SBA in the making of business loans. The loan applicant or borrower usually employs his own attorney to represent his interests, and this attorney is selected and paid by the applicant or borrower, except that the reasonableness of the fee is reviewed by SBA. On occasions, such as where the volume of activity has not been sufficient to require a full-time employee, or the area is too remote to economically use the services of a full-time employee, SBA has hired fee counsel to represent it in business loans. (b) Disaster loans. In disaster loans, as defined in part 123 of this chapter, SBA may contract for the services of fee counsel because the disaster presents an emergency and a volume of activity that cannot be promptly and economically serviced by the available full-time or temporary employees. (c) Compensation. All work performed at the request of, and for, SBA is performed in compliance with its regulations and instructions, and is compensated for at an hourly rate determined by SBA and established in the contract between SBA and the fee counsel. The contract may be terminated upon written notice by either party. (d) Duties. The fee counsel acts under the general supervision of the General Counsel through field counsel, and takes such action as is legally requisite and necessary for the making of loans under the provisions of the Small Business Act. In the event that fee counsel acts contrary to, or fails to act in accordance with SBA's regulations and instructions, the loan may be reassigned either to another fee counsel or to a full-time employee. In the performance of functions as an attorney for SBA the highest standards of professional conduct are requisite and proper. All matters of confidence proper to the attorney-client relationship are respected by fee counsel. § 101.8 Investigations: Small Business Act. § 101.8-1 Application of the rules of this part. The rules of this part apply only to investigations conducted under the Small Business Act (15 U.S.C. 631 et seq.). They do not apply to adjudicative or rule-making proceedings or investigations under the Small Business Investment Act of 1958, as amended (15 U.S.C. 661 et seq.). § 101.8-2 Scope of rules. Where, from complaints received from members of the public examination of filings and reports made with the Agency, communications from Federal or State agencies, or otherwise, it appears that there may be a violation of the Small Business Act, as amended, or the rules and regulations thereunder, or of any order issued under the Act, or where it appears that there is a likelihood that a violation has been or is about to be committed, the Administrator or the Assistant Administrator for Administration or the Director of the Office of Audits and Investigations may order a formal investigation if it is deemed necessary. § 101.8-3 Authority of officer conducting investigation. The person or persons designated by the Order of Formal Investigation shall have all the authority to conduct the inquiry as set forth in section 5(b)(11) of the Act, 15 U.S.C. 634(b)(11), including the authority to administer oaths and affirmations, subpoena witnesses, compel their attendance to take evidence, and require the production of any books, papers, and documents which are relevant to the inquiry. § 101.8-4 Non-public formal investigation proceedings. Unless otherwise ordered by the Administration, all formal investigative proceedings shall be non-public and the reports thereon are for the use of the Administration only. § 101.8-5 Right to copy of data or transcript of testimony. Transcripts, if any, of formal investigative proceedings shall be recorded by the official reporter, or by any other person or means designated by the officer conducting the investigation. A person who has submitted data or evidence in such investigations shall be entitled to retain or procure a copy of his data or a transcript of his testimony on payment of the prescribed fees; provided, however, in the case of non-public investigations such person shall file a written request stating the reason for desiring to procure such copy or transcript. The Administration may in non-public investigatory proceeding for good cause deny such request. In the latter event, such person, upon proper identification, shall have the right to inspect the official transcript of his testimony. § 101.8-6 Counsel for witnesses in investigations. Any person compelled to appear in person at an investigation designated in § 101.8-2 may be accompanied, represented and advised by counsel, but such counsel may not represent any other witness or any person being investigated, unless permitted in the discretion of the officer conducting the investigation or the Administration upon being satisfied that there is no conflict of interest in such representation and that the presence of identical counsel for other witnesses or persons being investigated would not tend to hinder the course of the investigation. § 101.8-7 Suspension counsel. or disbarment of The Administrator for good cause shown may, in accordance with the procedures set forth in part 104 of this chapter, reprimand, suspend or disbar counsel from practice before the Administration because of contemptuous conduct, dilatory tactics or other improper conduct in the course of an investigation. [42 FR 65139, Dec. 30, 1977] § 101.8-8 Information obtained in investigations. Information or documents obtained by the Administration in the course of any investigation shall, unless made a matter of public record, be deemed confidential. Officers and employees are hereby prohibited from making such confidential information or documents or any other non-public records of the Administration available to anyone other than an officer or employee of the Administration, unless the Administration authorizes the disclosure of such information or the production of such documents as not being contrary to the public interest. Any officer or employee who is served with a subpoena requiring the disclosure of such information or the production of such documents shall appear in court and, unless the authorization described in the preceding sentence shall have been given, shall respectfully decline to disclose the information or produce the documents called for, basing his refusal upon this section. Any officer or employee who is served with a subpoena shall promptly advise the Assistant Administrator for Congressional and Public Affairs and the Office of General Counsel of the service of such subpoena, the nature of the information or documents sought, and any circumstances which may bear upon the desirability of making available such information or documents. § 101.8-9 Service of subpoena. (a) Service of subpoenas issued in an investigative proceeding may be effected as follows: (1) By registered mail. A copy of the subpoena shall be addressed to the person, partnership, corporation, or unincorporated association to be served at his or its residence or principal office or place of business, registered, and mailed; or (2) By delivery to any individual. A copy of the subpoena may be delivered to the person to be served, or to a member of the partnership to be served, or to the president, secretary, or other executive officer or a director of the corporation or unincorporated association to be served; or (3) By delivery to an address. A copy of the subpoena may be left at the principal office or place of business of the person, partnership, corporation or unincorporated association, or it may be left at the residence of the person or a member of the partnership or of an officer or director of the corporation or unincorporated association to be served. (b) Proof of service. (1) When service is by registered mail, it is complete upon delivery of the document by the Post Office. (2) The return Post Office receipt for a document registered and mailed, or the verified return of certificate by the person serving the document by personal delivery, setting forth the manner of said service, shall be proof of the service of the document. SBA is governed as a matter of policy by the public participation provisions of the Administrative Procedure Act, 5 U.S.C. 553, notwithstanding the exemptions given by such section 553 for matters relating to agency management or personnel, or to public property, loans, grants, benefits, or contracts. Where, as provided by 5 U.S.C. 553, it is determined that such public participation procedures would be impracticable, unnecessary, or contrary to the public interest, a specific finding to this effect shall be published with the rules or regulations in question. Such exceptions from public participation procedures are not to be favored and will be used sparingly, as for example, in emergencies and in instances where public participation would be useless or wasteful because proposed regulations, or amendments thereto, cover minor technical matters. In connection with any notice of and Accounting Act of 1921 (31 U.S.C. 1 et seq.); the Budget and Accounting Procedures Act (31 U.S.C. 67 et seq.). § 102.1 Purpose and policy. (a) This part establishes policy and procedures governing public access to information contained in the files, documents, and records of the Small Business Administration (SBA). In keeping with the spirit as well as the letter of the Freedom of Information Act, 5 U.S.C. 552, it reflects SBA policy that disclosure is the general rule rather than the exception. This policy in favor of disclosure will be extended to information technically exempt from disclosure under the law where such disclosure would not adversely affect some legitimate public or private interest the protection of which is desirable, would not otherwise violate law or other authority, and would not impose an unreasonable burden upon SBA. (b) This part is also a recognition that the soundness of many SBA programs depends in large measure upon the reliability of commercial, technical, financial and business information relating to the affairs of applicants for SBA assistance. Much of this information would, if made public, jeopardize the credit and competitive business position of an applicant. It is essential therefore, that applicants be assured that information of this kind is considered confidential. Thus they will be encouraged to make complete disclosure of material bearing upon an application and SBA decisions on whether financial or other assistance should be approved will be made with greater assurance that the interests of the United States will be protected. [38 FR 28255, Oct. 12, 1973. Redesignated at 40 FR 46280, Oct. 6, 1975] § 102.2 Scope. (a) This part applies to all files, documents, records, and information obtained or produced by officers and employees of SBA in the course of their official duties as well as all files, documents, records, and other information in the custody or control of any SBA officer or employee. It does not purport to describe or set forth every |