(2) Such other means may include but are not limited to (i) legal action by SBA to enforce its rights, embodied in the assurances described in § 113.4; (ii) a reference to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States; and (iii) any applicable proceedings under State or local law.

(b) Noncompliance with § 113.4. If an applicant fails or refuses to furnish an assurance required under § 113.4 or otherwise fails or refuses to comply with a requirement imposed by or pursuant to that section, Federal financial assistance may be refused in accordance with the procedures of paragraph (c) of this section. SBA shall not be required to provide assistance in such a case during the pendency of the administrative proceedings under such paragraph except that SBA shall continue assistance during the pendency of such proceedings where such assistance is due and payable pursuant to an application therefor approved prior to the effective date of this part.

(c) Condition precedent. Under this Part 113, no order suspending, terminating, refusing, calling, canceling, or accelerating repayment of financial assistance in whole or in part shall become effective until (1) SBA has advised the applicant or recipient of his failure to comply and has determined that compliance cannot be secured by voluntary means; (2) there has been an express finding on the record after an opportunity for hearing, of a failure by the applicant or recipient to comply with a requirement imposed by or pursuant to this part; and (3) the action has been approved by the Administrator of SBA pursuant to § 113.9.

(d) Other means authorized by law. No action to effect compliance by any other means authorized by law shall be taken until (1) SBA has determined that compliance cannot be secured by voluntary means; (2) the action has been approved by the Administrator; (3) the applicant or recipient or other person has been notified of its failure to comply and of the action to be taken to effect compliance; and (4) the expiration of at least 10 days from the mailing of such notice to the applicant or recipient or other person. During this period of at least 10 days additional efforts shall be made to persuade the applicant or recipient or

When

(a) Opportunity for hearing. ever an opportunity for a hearing is required by § 113.7, reasonable notice shall be given by registered or certified mail, return receipt requested, to the affected applicant or recipient. This notice shall advise the applicant or recipient of the action proposed to be taken, the specific provision under which the proposed action against it is to be taken, and the matters of fact or law asserted as the basis for this action, and either (1) fix a date not less than 20 days after the date of such notice within which the applicant or recipient may request of SBA that the matter be scheduled for hearing or (2) advise the applicant or recipient that the matter in question has been set down for hearing at a stated place and time. The time and place so fixed shall be reasonable and shall be subject to change for cause. The complainant, if any, shall be advised of the time and place of the hearing. An applicant or recipient may waive a hearing and submit written information and argument for the record. The failure of an applicant or recipient to request a hearing under this paragraph or to appear at a hearing for which a date has been set shall be deemed to be a waiver of the right to a hearing and as consent to the making of a decision on the basis of such information as is available.

(b) Time and place of hearing. Hearing shall be held at the offices of SBA in Washington, D.C., at a time fixed by SBA unless SBA determines that the convenience of the applicant or recipient or of SBA requires that another place be selected. Hearings shall be held before a hearing examiner designated in accordance with section 11 of the Administrative Procedure Act.

(c) Right to counsel. In all proceedings under this section, the applicant or recipient and SBA shall have the right to be represented by counsel.

(d) Procedures, evidence, and record. (1) The hearing, decisions, and any administrative review thereof shall be conducted in conformity with sections 5-8 of the Administrative Procedure Act, and in accordance with such rules of procedure

as are proper (and not inconsistent with this section) relating to the conduct of the hearing, giving of notices subsequent to those provided for in paragraph (a) of this section, taking of testimony, exhibits, arguments and briefs, request for findings, and other related matters. Both SBA and the applicant or recipient shall be entitled to introduce all relevant evidence on the issues as stated in the notice for hearing or as determined by the officer conducting the hearing at the outset of or during the hearing.

(2) Technical rules of evidence shall not apply to hearings conducted pursuant to this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary by the officer conducting the hearing. The hearing officer may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record. All decisions shall be based upon the hearing record and written findings shall be made. § 113.9 Decisions and Notices.

(a) Decision by a hearing examiner. If the hearing is held by a hearing examiner, such hearing examiner shall either make an initial decision, if so authorized, or certify the entire record including his recommended findings and proposed decision to the Administrator for a final decision, and a copy of such initial decision or certification shall be mailed to the applicant or recipient and the complainant. Where the initial decision is made by the hearing examiner the applicant or recipient may within 30 days of the mailing of such notice of initial decision file with the Administrator his exceptions to the initial decision, with his reasons therefor. In the absence of exceptions, the Administrator may on his own motion within 45 days after the initial decision serve on the applicant or recipient a notice that he will review the decision. Upon the filing of such exceptions or of such notice of review the Administrator shall review the initial decision and issue his own decision thereon including the reasons there

for. The decision of the Administrator shall be mailed promptly to the applicant or recipient and the complainant, if any. In the absence of either exceptions or a notice of review the initial decision shall constitute the final decision of the Administrator.

(b) Decisions on record or review by the Administrator. Whenever a record is certified to the Administrator for decision or he reviews the decision of a hearing examiner pursuant to paragraph (a) of this section, or whenever the Administrator conducts the hearing, the applicant or recipient shall be given reasonable opportunity to file with him briefs or other written statements of its contentions, and a copy of the final decision of the Administrator shall be given in writing to the applicant or recipient and the complainant, if any.

(c) Decisions on record where a hearing is waived. Whenever a hearing is waived pursuant to § 113.8 a decision shall be made by the Administrator on the record and a copy of such decision shall be given in writing to the applicant or recipient, and to the complainant, if any.

(d) Rulings required. Each decision of a hearing officer or the Administrator shall set forth his ruling on each finding, conclusion, or exception presented, and shall identify the requirement or requirements imposed by or pursuant to this part with which it is found that the applicant or recipient has failed to comply.

(e) Contents of orders. The final decision may provide for a refusal to extend financial assistance or, in the event that such assistance has already been granted, for acceleration of the recipient's obligation in accordance with the terms of the assurance described in § 113.4. The decision may contain such further terms, conditions and provisions as are consistent with, and will effectuate the purposes of, this part. § 113.10

Effect on other regulations; forms and instructions.

(a) Effect on other regulations. Nothing in this part shall be deemed to supersede either of the following (including future amendments thereof): (1) Executive Order 11246 and regulations issued thereunder or (2) Executive Order 11063 and regulations issued thereunder.

(b) Forms and instructions. SBA shall issue and promptly make available

to interested persons forms and detailed instructions and procedures for effectuating this part.

and

coordination.

(c) Supervision The Administrator may from time to time assign to officials of SBA or to officials of other agencies of the Government, with the consent of such agencies, responsibilities in connection with the effectuation of the purposes of this part (other than responsibility for first decisions as provided in § 113.9) including the achievement of effective coordination and maximum uniformity within SBA and within the executive branch of the Government in the application of this part and of comparable regulations issued by other agencies of the Government to similar situations.

As used throughout this Part 114: (a) “Administration” means the Small Business Administration;

(b) "Area Board of Survey" means a three-member board composed of the Area Counsel and representatives from the Area Financial Assistance and Procurement and Management Assistance Divisions;

(c) "Employee" means an officer or employee of the Administration;

(d) "Regional Board of Survey” means a three-member board composed of the Regional Counsel and representatives from the Regional Financial Assistance and Procurement and Management Assistance Divisions;

(e) "Survey Officer" means the officer who reviews the findings and recommendations of all Boards of Survey and approves or disapproves such findings and recommendations;

(f) "Washington Board of Survey" means a board composed of three voting members, namely: A representative of the Security and Investigations Division, Office of Audits and Investigations; a representative of the Accounting Operations Division, Office of Budget and Finance; and a representative of the Office Services Division, Office of Administrative Services; together with non-voting member representing the Office of General Counsel.

§ 114.101 Scope of regulations.

one

This part applies only to claims asserted under the Federal Tort Claims Act, as amended, 28 U.S.C. 2671-2680, accruing on or after January 18, 1967, for money damages against the United States for injury to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of an employee of the Administration while acting in the scope of his office or employment.

§ 114.102 Administrative claim; when presented; appropriate Administration office.

For purposes of this Part 114, a claim is deemed to have been presented when the Administration receives, at the area or regional office nearest to the place where the incident occurred, an executed "Claim for Damage or Injury," Standard Form 95, in triplicate, or other written notice of an incident together with a claim for money damages in a sum certain for injury to or loss of property or injury or death alleged to have occurred as a result of the incident. When any such written notice is given, it shall be incumbent upon the regional or area office concerned to furnish to the claimant the requisite copies of Standard Form 95 with instructions for completing it.

(c) A claim based on death may be presented by the executor or administrator of the decedent's estate, or by any other person legally entitled to assert such a claim in accordance with applicable state law.

(d) A claim for loss wholly compensated by an insurer with the rights of a subrogee may be presented by the insurer. A claim for loss partially compensated by an insurer with the rights of a subrogee may be presented by the parties individually as their respective interests appear, or jointly.

(e) A claim presented by an agent or legal representative shall be presented in the name of the claimant, be signed by the agent or legal representative, show the title or legal capacity of the person signing, and be accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.

The Administration may investigate, or may request any other Federal agency to investigate, a claim filed under this part.

§ 114.105 Administrative claim; evidence and information to be submitted.

(a) Death. In support of a claim based on death, the claimant may be required to submit the following evidence or information:

(1) An authenticated death certificate or other competent evidence showing cause of death, date of death, and age of the decedent.

(2) Decedent's employment or occupation at time of death, including his monthly or yearly salary or earnings (if any), and the duration of his last employment or occupation.

(3) Full names, addresses, birth dates, kinship, and marital status of the decedent's survivors, including identification of those survivors who were dependent for support upon the decedent at the time of his death.

(4) Degree of support afforded by the decedent to each survivor dependent upon him for support at the time of his death.

(5) Decedent's general physical and mental condition before death.

(6) Itemized bills for medical and burial expenses incurred by reason of the incident causing death or itemized

receipts of payment for such expenses. (7) If damages for pain and suffering prior to death are claimed, a physician's detailed statement specifying the injuries suffered, duration of pain and suffering, any drugs administered for pain, and the decedent's physical condition in the interval between injury and death.

(8) Any other evidence or information which may have a bearing on either the responsibility of the United States for the death or the damages claimed.

(b) Personal injury. In support of a claim for personal injury, including pain and suffering, the claimant may be required to submit the following evidence or information:

(1) A written report by his attending physician or dentist setting forth the nature and extent of the injury, nature and treatment, any degree of temporary or permanent disability, the prognosis, period of hospitalization, and any diminished earning capacity. In addition, the claimant may be required to submit to a physical or mental examination by a physician employed by the Administration or another Federal agency. A copy of the report of the examining physician shall be made available to the claimant upon the claimant's written request: Provided, That he has, upon request, furnished the report referred to in the first sentence of this subparagraph and has made or agrees to make available to the Administration any other physician's reports previously or thereafter made of the physical or mental condition which is the subject matter of his claim.

(2) Itemized bills for medical, dental, and hospital expenses incurred, or itemized receipts of payment for such expenses.

(3) If the prognosis reveals the necessity for future treatment, a written statement of expected expenses for such treatment.

(4) If a claim is made for loss of time from his employment, a statement from his employer showing actual time lost from employment, whether he is a fullor part-time employee, and wages or salary actually lost.

(5) If a claim is made for loss of income and the claimant is self-employed, documentary evidence showing the amount of earnings actually lost.

(6) Any other evidence or information which may have a bearing on either the responsibility of the United States for the personal injury or the damages claimed.

(c) Property damage. In support of a claim for damage to or loss of property, real or personal, the claimant may be required to submit the following evidence or information:

statement

of the

(1) Proof of ownership. (2) A detailed amount claimed with respect to each item of property.

(3) An itemized receipt of payment for necessary repairs or itemized written estimates of the cost of such repairs.

(4) A statement listing date of purchase, purchase price and salvage value, where repair is not economical.

(5) Any other evidence or information which may have a bearing on either the responsibility of the United States for the damage to or loss of property or the damages claimed.

§ 114.106 Authority to adjust, determine, compromise, and settle.

(a) Upon presentation of a claim and appropriate investigation thereof, the Board of Survey of the area or regional office to which the claim was presented shall consider all of the evidence and enter the Board's findings of fact, conclusions, and recommendations. There shall be appended to the Board's findings of fact, conclusions, and recommendations, a legal opinion of the Area or Regional Counsel regarding the liability of the United States under the applicable state law governing negligence and other related matters. The Area or Regional Board of Survey shall establish a case file containing all documents related to the claim and the incident out of which it arose. The file shall also contain the Board's findings of fact, conclusions, and recommendations, and the legal opinion of the Area or Regional Counsel. The file shall be forwarded to the Chairman of the Washington Board of Survey after the Area or Regional Board of Survey has performed its function.

(b) The Washington Board of Survey shall review the case and submit its recommendations in a report to the Survey Officer. A representative of the Office of General Counsel, normally the nonvoting member of the Washington Board of Survey, shall review the submitted legal opinions regarding the liability of the United States under applicable State law governing negligence and related matters and, in the event of disagreement, shall render a separate legal opinion to the Washington Board of Survey. The report and legal opinion, if any, shall be

prepared in an original and five copies and shall be attached to the case file.

(c) If the Survey Officer approves the recommendation of the Washington Board of Survey to pay the claim, the Chairman of the Washington Board of Survey shall complete an original copy of Standard Form 1145 and two memorandum copies of Standard Form 1145A, "Voucher for Payment Under Federal Tort Claims Act." The Chairman shall forward said copies to the claimant for his signature and acceptance.

(d) Upon receiving the Standard Forms 1145 and 1145A from the Claimant, the Chairman of the Washington Board of Survey shall attach the forms to the case file and forward the file to the Administrator or his designee for final approval.

(e) If the Survey Officer disapproves the recommendations of the Washington Board of Survey that the claim be paid, the case file shall be forwarded immediately to the Administrator or his designee for final action. If the Administrator or his designee concurs with the Survey Officer, this shall constitute a final agency denial of the claim and appropriate notice shall be given the claimant as provided in § 114.110 of this part. If the Administrator or his designee disagrees with the Survey Officer, Standard Forms 1145 and 1145A shall be prepared and forwarded to the claimant as provided for in paragraph (c) of this section. After the claimant has signed and returned them, the Administrator or his designee shall sign them.

(f) If the Area or Regional Board of Survey or the Washington Board of Survey recommends that the claim not be paid, the claim shall nevertheless be processed to final action by the Administrator or his designee through all the appropriate stages outlined in the preceding paragraphs of this section.

§ 114.107 Limitations on authority.

(a) An award, compromise, or settlement of a claim in excess of $25,000 filed under this part shall not be effected without prior written approval of the U.S. Attorney General or his designee. For purposes of this paragraph, a principal claim and any derivative or subrogated claim shall be treated as a single claim.

(b) An administrative claim may be adjusted, determined, compromised, or settled under the Federal Tort Claims Act only after consultation with the Department of Justice when, in the opin