160.8, SBA has contracted with special admiralty fee counsel to assist in the closing and disbursement of such loans in order to assure compliance with the requirements of admiralty law. The limited number of fish and wildlife loans and their disbursement in widely dispersed areas make it more economical and expeditious for SBA to employ special admiralty fee counsel rather than full-time employees.

(d) 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.

(e) Duties. The fee counsel acts under the general supervision of the General Counsel through the Regional 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, Regional Counsel may reassign the loan 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.

[23 F.R. 10508, Dec. 31, 1958]

This part establishes policy and procedures governing the disclosure of information contained in the files, documents and records of SBA. Material is submitted to SBA by an applicant in confidence in order that SBA may determine whether financial or other assistance should be granted. Such material, if released, would jeopardize the credit and competitive business position of an applicant and materially affect the integrity and reliability of financial and other business information submitted to SBA upon which reliance must be placed to protect the interests of the United States. It is equally essential that applicants be assured that such material will not be disclosed.

§ 102.2 Scope.

This part applies to all files, documents, records and information obtained by officers and employees of SBA in the course of their official duties and all files, documents, records and information in the custody or control of any officer or employee of SBA (unless such files, documents, records and information are a matter of public record), except official information and records classified under Executive Order No. 10501. (3 CFR, 1953 Supp.)

§ 102.3

Disclosure prohibited.

Officers and employees of SBA are hereby prohibited from disclosing or making available to anyone the files, documents, records and information described in § 102.2 for any purpose other than the performance of his official duties, unless the Administrator specifically authorizes the disclosure of such information or the production of such files, documents and records, or parts thereof, as not being contrary to the public interest.

§ 102.4 Appearances and testimony.

Whenever an officer or employee of SBA is served with a subpoena demanding the disclosure of the information or the production of files, documents and records described in § 102.2, or is requested by any court, committee or other body to disclose such information, the officer or employee shall promptly inform his superior of the requirements of the subpoena or request and shall ask for instructions from the Administrator with respect thereto. The employee who is so

served with a subpoena shall appear before the court, committee or body and, if the Administrator has not authorized the disclosure of such information, the employee shall respectfully decline to disclose the information or produce the files, documents and records demanded or requested, basing such refusal upon this part.

§ 102.5 Disclosure permitted.

The names of borrowers or other recipients of SBA assistance, amount and types of loans approved or other assistance furnished, number of employees, type of business and general purpose of the assistance may be disclosed.

103.13-5 Interpretation of “good cause”. 103.13-6 Compensation allowable to agents.

AUTHORITY: The provisions of this Part 103 issued under sec. 5, 72 Stat. 385; 15 U.S.C. 634.

SOURCE: The provisions of this Part 103 contained in Revision 1, 28 F.R. 3776, Apr. 18, 1963, unless otherwise noted.

§ 103.13 Statutory provisions.

SEC. 13. No loan shall be made or equipment, facilities, or services furnished by the Administration under this Act to any business enterprise unless the owners, partners, or officers of such business enterprise (1) certify to the Administration the names of any attorneys, agents, or other persons engaged by or on behalf of such business enterprise for the purpose of expediting applications made to the Administration for assistance of any sort, and the fees paid or to be paid to any such person; (2) execute an agreement binding any such business enterprise for a period of two years after any assistance is rendered by the Administration to such business enterprise, to refrain from employing, tendering any office or employment to, or retaining for professional services, any person who, on the date such assistance or any part thereof was rendered, or within one year prior thereto, shall have served as an officer, attorney, agent, or employee of the Administration occupying a position or engaging in activities which the Administration shall have determined involve discretion with respect to the granting of assistance under

this Act; and (3) furnish the names or lending institutions to which such business enterprise has applied for loans together with dates, amounts, terms, and proof of refusal.

§ 103.13-1 Purpose.

The regulations in this part are promulgated to aid in the orderly administration of the Small Business Act and to interpret and apply section 13 in a manner consistent with the intent and purpose of Congress.

§ 103.13-2 Definitions.

For purposes of this part:

(a) "Administrator" shall mean the Administrator of the Small Business Administration.

(b) "Agent" shall include attorneys, accountants, consultants, manufacturers' representatives, and any other persons acting in a representative capacity.

(c) The term "appear before SBA" shall include (1) the preparation or submission on behalf of an Applicant of applications for financial assistance, assistance from the Investment Division of SBA, and assistance in procurement and technical matters; (2) conferences or other communications on behalf of an Applicant with officers or employees of SBA; (3) participation on behalf of another in any matter before SBA.

(d) "Applicant" shall mean any person, firm, concern, corporation, partnership, cooperative or other business enterprise applying or making application for, or receiving assistance from SBA. § 103.13-3 Appearance.

(a) Personal appearance. Any individual Applicant or member of an Applicant partnership may appear for himself or for such partnership, and any Applicant corporation may be represented by a bona fide officer of the corporation.

(b) Appearance by agents. Any Applicant may appear before SBA by an attorney at law admitted to practice and in good standing before any of the Federal courts of the United States or the highest court of any State or Territory of the United States, or by any competent person of good moral character and of good repute who is a citizen of the United States or who has declared his intention to become such citizen, if not prohibited by law or the regulations in this part from appearing before SBA in behalf of such Applicant.

(c) Evidence of agent's authority. SBA may request of any Agent written

evidence of the nature and extent of his authority to act on behalf of an Applicant. SBA may refuse to reveal any information concerning any SBA assistance applied for or received by any Applicant to any person whose relationship with the Applicant is not clearly demonstrated in writing.

§ 103.13-4

Suspension or revocation of the privilege to appear.

The Administrator, for good cause (see § 103.13-5), may suspend, pending a hearing and decision, the privilege of any Applicant or Agent, to appear before SBA, and may also revoke such privilege of any Applicant or Agent, in accordance with procedures contained in Part 104 of this chapter.

$103.13-5 Interpretation of “good cause".

Section 103.13-4 provides that the Administrator, for good cause, may suspend or revoke the privilege of any Agent or Applicant to appear before SBA. "Good cause" as used in this conection will be deemed to mean any unlawful or unethical activity. The following acts would constitute "good cause"; these are illustrative only and "good cause" is not necessarily limited to the following:

(a) Inducement. Inducing or attempting to induce by gifts, or offer thereof, promises, bribes or otherwise, any officer or employee of SBA to take any action with respect to any matter before SBA.

(b) Solicitation. Requesting or suggesting directly or through any agency or medium, that an Applicant employ, either directly or indirectly, the person making or initiating the request or suggestion, or some other person, to perform work in connection with an application. "Solicitation" shall include, but shall not be limited to, requests or suggestions which are not justified by the personal relationship existing between the Applicant and such person or persons; requests or suggestions which violate the ethics, customs, or regulations of the profession or business of said person or persons; and requests or suggestions which imply or infer that the work to be performed, or any portion thereof will be of a political, influential, or similar nature.

(c) Fees or charges. Charging or proposing to charge for any services performed in connection with matters before SBA (as defined in § 103.13–2(c) any

fee contingent upon the granting of any benefit to the Applicant unless the amount of such fee bears a necessary and reasonable relationship to the services actually performed; any fee which is deemed by SBA to be unreasonable for the services actually performed; or the charging of any expenses which are not deemed by SBA to have been necessary in connection with the application. This provision will not be construed to limit the right of SBA to require the execution by any person of an agreement as to compensation for services rendered, or to be rendered, to Applicants in connection with any matter before SBA, as provided for in § 103.13-6.

(d) Violation of compensation agreement. Violation of any compensation agreement, provided for in § 103.13-6.

(e) Violations of rules or regulations. Knowingly violating or participating in the violation of any rules or regulations of SBA, including the making, or inducing of another to make, any false representations to influence or facilitate the granting of any benefit to Applicant, in violation of the Small Business Act, as amended, the Small Business Investment Act of 1958, or any rules or regulations issued thereunder.

(f) Lack of good moral character. A course of conduct, past or present, which indicates that the person challenged is lacking in integrity or decorum, or has no respect for law and order, or which indicates that the Agent might submit unreliable information or evidence to SBA in connection with matters on which he is employed. § 103.13-6

agents.

Compensation allowable to

SBA reserves the right to require any Agent or Applicant to execute an agreement governing the compensation charged for services rendered or to be rendered to such Applicant in any matter coming before SBA. Such agreement will provide, among other things, (a) that if the amount of compensation charged for any such services shall not be deemed reasonable by SBA, such Agent will reduce the charge for such Iservices to such amount as shall be deemed reasonable by SBA, and will not, directly or indirectly, charge or collect from the Applicant or any other person, for such services, any sum in excess of the amount deemed reasonable by SBA; (b) that if such Agent has heretofore collected from the Applicant, or any

104.9 Effect of decision.

104.10 Reopening.

104.11 Immaterial mistakes. 104.12 Pending proceedings.

AUTHORITY: The provisions of this Part 104 issued under sec. 5, 72 Stat. 385; 15 U.S.C. 634.

SOURCE: The provisions of this Part 104 contained in Revision 1, 28 F.R. 3777, Apr. 18, 1963, unless otherwise noted.

§ 104.1 Rules of procedure.

The Small Business Administrator (referred to in this part as "Administrator") may, in accordance with § 103.13-4 of this chapter, suspend or revoke the privilege of any agent (called "Respondent" in this part) to appear before SBA. Proceedings for such purpose shall be governed by the rules in this part.

§ 104.2 Service.

(a) Service of notice. Notice of suspension or revocation of the privilege of Respondent to appear before SBA, signed by the Administrator, shall be served upon the Respondent in the following

manner:

(1) By delivering it to the Respondent personally; or

(2) By registered mail: Provided, That, if a Respondent shall have signed and filed with the Administrator written consent to be served in some other manner, it shall be sufficient if service is made in that manner. Where the service is by registered mail proof of such mailing by SBA shall be satisfactory evidence of such service.

(b) Service of papers other than notice. Papers other than the notice shall be served on the Respondent as follows:

(1) By delivering them to the Respondent personally; or

(2) By leaving them at his office with his clerk or with a person in charge thereof; or

(3) By depositing them in a United States post office or post office box, enclosed in a sealed envelope, plainly addressed to such Respondent at the address under which he is enrolled, or at last address known to SBA.

(4) When the Respondent is represented by attorney, by service upon the attorney in the same manner as provided in subparagraphs (1), (2) and (3) of this paragraph for service on the Respondent.

(c) Service of papers upon the Administrator. Papers shall be served upon the Administrator as follows:

(1) By delivering them to the General Counsel of SBA; or

(2) By depositing them in a United States post office or post office box, enclosed in a sealed envelope, plainly addressed to the General Counsel of the Small Business Administration, Washington, D.C., 20416.

§ 104.3 Notice.

(a) The notice shall specify the charges upon which the Administrator bases the suspension or revocation of the privilege of Respondent to appear before SBA. Any suspension of the privilege of the Respondent to appear before SBA shall become effective as of the date of the service of the notice upon the Respondent. Any revocation of the Respondent's privilege to appear before SBA shall not become effective earlier than 20 days from the date of service of the notice on Respondent.

(b) In the event that a Respondent, whose privilege to appear has been suspended pursuant to the notice provided for in paragraph (a) of this section, fails to file an answer or request to be heard in response to the charges made against him within 20 days from the effective date of the suspension, the Administrator may revoke such privilege. § 104.4 Extension of time.

The Administrator may, in his discretion and upon appropriate application and showing by the Respondent, extend the effective date of the suspension or revocation.

§ 104.5 Answer and request to be heard.

At any time prior to the effective date of a revocation of the Respondent's priv

ilege to appear or within 20 days after his receipt of a notice of suspension, he may file an answer with SBA, or request in writing an opportunity to be heard in answer to the charges, or both. If the Respondent files an answer or requests such a hearing, the effective date of the revocation shall be stayed pending the decision of the Administrator (see § 104.8).

§ 104.6 Request for additional information.

If Respondent desires additional information as to the charges, he may present a request in writing to the Administrator, asking that the notice be made more specific and setting forth in detail the additional information requested. If the Administrator determines that such information is relevant and material to the charges, he shall furnish the Respondent with such information.

It

The hearing shall be informal. shall be held before the Administrator or an employee of SBA duly authorized by the Administrator to hear the matter and shall be upon the charges and Respondent's answer thereto. Respondent may, in addition to filing a written answer, furnish affidavits or produce witnesses at the hearing in support of his answer. The Administrator or such employee may determine the time, place and manner in which Respondent shall be heard, the form in which evidence shall be received, and may adopt rules of procedure and modify same from time to time as the occasion requires for the orderly disposition of the charges. Written notice of the time and place of all hearings shall be given the Respondent in the manner provided in this part for the service of papers. No hearing shall be held without reasonable notice thereof to the Respondent. The Administrator or such employee may postpone or adjourn hearings when necessary or desirable, on notice to the parties. Following a hearing held before an SBA employee, said employee shall prepare proposed findings and conclusions and present them to the Administrator.

shall have been held before an employee designated by him, he shall give such weight as he shall deem appropriate to the recommended findings and conclusions of such employee. The decision shall state the effective date of any action taken and be served upon the Respondent in the manner provided in § 104.2(a).

8 104.9 Effect of decision.

The decision of the Administrator shall, without further proceedings, be the final decision of SBA.

§ 104.10 Reopening.

Any Respondent whose privilege to appear has been suspended or revoked may make written application in duplicate to the Administrator to have the order of suspension or revocation vacated or modified upon the grounds of newly discovered information or that important information is now available which the applicant was previously unable to produce. Such application must set forth specifically such information, and shall state the reasons why the applicant was unable to produce such information when the original charges were heard. Administrator, after consideration of the application, may in his sole discretion, grant or deny the application, or fix a time and place for a further hearing of the application and give notice thereof to applicant. In the event SBA shall issue an order vacating or modifying the prior order to suspend or revoke the privilege of a Respondent to appear before SBA, notice thereof shall be given by SBA to all those to whom notice of the original order was sent.

§ 104.11 Immaterial mistakes.

The

The Administrator shall disregard an immaterial misnomer of a third person, an immaterial mistake in the description of any person, thing, or place or the owner-ship of any property, a failure to prove an immaterial allegation, or any other immaterial mistake.

§ 104.12 Pending proceedings.

In proceedings pending at the time of publication of the rules in this part, if, in the judgment of the Administrator, the procedure followed prior to publication of this part has been in substantial compliance with applicable rules as