Code of Federal Regulations: Containing a Codification of Documents of ...

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 chal@lenged is lacking in integrity or decorum, or has no respect for law and order, or which indicates that the Agent might submit unreliable inforEmation or evidence to SBA in connec#tion with matters on which he is employed.

[Rev. 1, 28 FR 3776, Apr. 18, 1963, as amended by Amdt. 1, 40 FR 59425, Dec. 24, 1975]

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 services 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 other person, as compensation for any

§ 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.

[40 FR 5139, Feb. 4, 1975]

(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

(f) Disclosure to Representative. Upon request, personnel records of an employee or former employee, shall be disclosed to the individual to whom the record pertains and under whose individual name and/or identifier they are filed. A person of his or her own choosing may accompany the individual when the record is disclosed, or the record may be released to the individual's representative who has the notarized written consent of the employee or former employee. Any disclosure of original records must be made in the presence of a representative of the Agency having physical custody of the records. (See 5 CFR 297.111 (a)).

(g) Representatives of Minors and Incompetents. For the purpose of Subpart B of Part 102, the parent of any minor, or the legal guardian of any individual who has been declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction, may act on behalf of the individual.

(h) Medical Records. Medical records shall be disclosed to the individual to whom they pertain unless, in the judgment of the Privacy Act Officer, access to such record could have an adverse effect upon such individual. The Agency may, however, transmit such information to a medical doctor named by the requesting individual. In regard to medical records in personnel files, see also 5 CFR 297.111(a)(1).

§ 102.33 Fees.

(a) The Agency shall charge no fee for providing the first copy of a record or any portion thereof to an individual requesting disclosure of information filed in his or her personnel records. (5 CFR 297.115).

(b) For all other copies of records made pursuant to this regulation, the Agency will not charge for the cost of any search for and review of the record and when the Agency makes a copy of a record as a necessary part of its process of making the record available for review, but may charge for all other reproduction at ten cents per page.

§ 102.34 General exemptions.

No Agency records system or systems as such are exempted from the provisions of 5 U.S.C. 552a as permit ted under certain conditions by 5 U.S.C. 552a(j) except as may be desig nated by rules promulgated by the Administrator of the Small Business Administration and published in the FEDERAL REGISTER as required.

§ 102.35 Specific exemptions.

(a) Systems of records subject to investigatory material exemption under 5 U.S.C. 552a(k)(2), or 5 U.S.C. 552a(k (5), or both.

(1) Audit Reports-SBA 025, a system containing investigations concerning the use of funds by recipients of disas ter home loans;

(2) Litigation and Claims File-SBA 220, a system containing information concerning recipients of disaster home loans and other individuals who are parties to lawsuits or claims involving SBA;

(3) Personnel Security Files-SBA 315, a system containing background information on active and inactive SBA employees;

(4) Security and Investigations Files-SBA 360, a system which contains information on individuals seeking or receiving SBA assistance, individuals involved in businesses or other organizations seeking or receiving such assistance, representatives of applicants for SBA assistance, members of advisory councils, and SCORE/ACE volunteers;

(5) Security and Investigation Refer rals-SBA 365, a system containing information relating to referrals for investigation of possible misconduct by SBA employees, and individuals involved in seeking or obtaining SBA assistance; and

(6) Standards of Conduct Files—SBA 380, a system containing information concerning outside employment and financial interests of SBA employees, conduct of SBA employees, and related matters.

(b) Privacy Act provisions from which exempt. The systems of records described in this section are exempt from subsections (c)(3) (Accounting of Certain Disclosures), (d) (Access to Records), (e)(1), 4G, H, and I (Agency

Requirements), and (f) (Agency Rules) of 5 U.S.C. 552a.

(c) Reasons for exemptions. The systems of records described in this section are exempt for one or more of the following reasons:

(1) To prevent the subject of investigations from frustrating the investigatory process.

(2) To protect investigatory material compiled for law enforcement purposes.

(3) To fulfill commitments made to protect the confidentiality of sources and to maintain access to necessary sources of information.

(4) To prevent interference with law enforcement proceedings.

[Rev. 2, Amdt. 5, 41 FR 43712, Oct. 4, 1976]

§ 102.36 Judicial review.

Any individual may bring a civil action against the Agency in a district court of the United States as provided by 5 U.S.C. 552a(g)(1) whenever the Small Business Administration:

(a) Makes a final determination under § 102.30 not to amend an individual's record in accordance with his or her request, or fails to make such review in conformity with that section;

(b) Makes a final determination under § 102.27 to refuse a request to gain access to a record;

(c) Fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or

(d) Fails to comply under any other provision of 5 U.S.C. 552a or any Agency rule or regulation promulgated thereunder, in such a way as to have an adverse effect on an individual.

§ 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 of 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 interpet 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 connection 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 sug gesting directly or through any agency or medium the employment of 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 violate the ethics, customs, or regulations of the profession or business of the person or persons making or initiating the suggestions; requests or sugges tions which imply or infer that the work to be performed or any portion thereof, will be of a political, influen tial, or similar nature; and any advertisement or representation that contains or uses the words "Small Business Administration" or "SBA", or any symbol thereof.

(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

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

(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.

[Rev. 1, 28 FR 3776, Apr. 18, 1963, as amended by Amdt. 1, 40 FR 59425, Dec. 24, 1975]

§ 104.1 Rules of procedure.

[40 FR 5139, Feb. 4, 1975]

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

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