(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 fulltime 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 In

vestment Act of 1958, as amended (15 U.S.C. 661 et seq.).

§ 101.8-2 Scope of rules.

received

Where, from complaints 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 or disbarment of counsel.

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 im

proper 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 per

son, 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.

101.8-10 Witness fees.

Witnesses in an investigative proceeding shall be paid the same fees and mileage as are paid witnesses in the courts of the United States.

$101.9 Public participation in rulemaking.

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 mat

ters 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 proposed rulemaking, written material or suggestions subImitted will be available for public inspection during regular business hours at the office indicated in such notice.

§ 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 wise 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 Agency file, document, record, or item of information which may or may not be disclosed or to incorporate every exemption from disclosure provided by law. Material described is illustrative rather than exclusive.

(b) Moreover, this part deals with the availability of information to the public, including parties involved in litigation affecting the agency.

[38 FR 28255, Oct. 12, 1973. Redesignated at 40 FR 46280, Oct. 6, 1975, and amended at 57 FR 48307, Oct. 23, 1992]

§ 102.3 Information and records available to the public and exempt from disclosure.

(a) General. (1) All SBA information and records not exempt by law are available for public inspection and copying in, or through, facilities described in §102.4. Exempt materials may also be made available where disclosure would not adversely affect

some legitimate public or private interest, would not otherwise violate law or other authority, and would not impose an unreasonable burden on SBA. Reasonable requests for material not in existence may also be honored where their compilation will not unduly interfere with SBA activities and programs. Requests for information will be answered as promptly as practicable.

(2) SBA Standard Operating Procedure (SOP) 40 03 "Disclosure of Information," which is available in the facilities described in §102.4, sets forth in detail the information, records, and other data which are, or may be, available to the public as well as those exempt from disclosure. Specific examples of information routinely available in SBA facilities are listed in §102.4. Examples of information and other materials, available and exempt, in which there should be general interest are discussed in succeeding paragraphs of this section.

(b) Information and records relating to SBA assistance programs. (1) Although SBA assistance programs typically involve the consideration of material constituting in large part trade secrets, commercial or financial information, information submitted in confidence, or information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, the following kinds of information are nevertheless available to the public:

(i) Names of recipients of loans, small business investment company licenses, certificates of competency, grants, lease guarantees, surety bond guarantees, and other assistance.

(ii) Names of officers, directors, stockholders, or partners of recipient firms.

(iii) The kind and amount of assistance.

(iv) The purpose of the approved assistance in general terms.

(2) Information exempt from disclosure to the public includes:

(i) Information other than statistical on pending, declined, withdrawn, or canceled applications for assistance.

(ii) Financial or other confidential information about borrowers obtained from any source.

(iii) Individual case files relating to such activities as loans, licenses, lease guarantees, surety bond guarantees, size determinations, facilities inventory, prime and subcontracting, and Service Corps of Retired Executives (SCORE), and other volunteer organizations.

(iv) Internal Agency communications showing, for example, recommendations on applications for assistance.

(v) Information concerning losses, delinquencies and defaults in individual cases, except that such information may be reported to credit reporting agencies pursuant to contract.

(vi) Information regarding the character of applicants, borrowers, or other persons.

(vii) Financial reports (including the names of portfolio concerns) of small business investment companies and divestiture plans of such companies.

(viii) Examination, audit, investigation, and litigation reports.

(c) Opinion Digest-(1) Description. This Digest which is available for inspection and copying in the facilities described in §102.4, is largely a compilation of selected advisory legal opinions involving specific facts and specific parties. As such they do not necessarily reflect final Agency opinions, interpretations, or decisions in any given cases. Moreover, the opinions are based on authority in effect at the time the opinions were rendered and such authority may no longer be controlling because of a change in law, regulation, or other directive pertaining to the matter. They do, however, provide guides to the reasoning utilized in ana

(vi) Statistical data on assistance programs.

(vii) Decisions, rulings, and records showing Agency actions in specific factual situations where identifying details exempt from disclosure may be effectively deleted.

which may have widespread implications and are made available to the public primarily on this basis rather than as authoritative statements of continuing precedent.