§ 687b. Investigations and examinations; power to subpena and take oaths and affirmations; aid of courts; examiners; reports

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(a)Investigation of violations The Administration may make such investigations as it deems necessary to determine whether a licensee or any other person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of this chapter, or of any rule or regulation under this chapter, or of any order issued under this chapter. The Administration shall permit any person to file with it a statement in writing, under oath or otherwise as the Administration shall determine, as to all the facts and circumstances concerning the matter to be investigated. For the purpose of any investigation, the Administration is empowered to administer oaths and affirmations, subpena witnesses, compel their attendance, take evidence, and require the production of any books, papers, and documents which are relevant to the inquiry. Such attendance of witnesses and the production of any such records may be required from any place in the United States. In case of contumacy by, or refusal to obey a subpena issued to, any person, including a licensee, the Administration may invoke the aid of any court of the United States within the jurisdiction of which such investigation or proceeding is carried on, or where such person resides or carries on business, in requiring the attendance and testimony of witnesses and the production of books, papers, and documents; and such court may issue an order requiring such person to appear before the Administration, there to produce records, if so ordered, or to give testimony touching the matter under investigation. Any failure to obey such order of the court may be punished by such court as a contempt thereof. All process in any such case may be served in the judicial district whereof such person is an inhabitant or wherever he may be found.

(b)Examinations and reports Each small business investment company shall be subject to examinations made by direction of the Investment Division of the Administration, which may be conducted with the assistance of a private sector entity that has both the qualifications to conduct and expertise in conducting such examinations, and the cost of such examinations, including the compensation of the examiners, may in the discretion of the Administration be assessed against the company examined and when so assessed shall be paid by such company. Fees collected under this subsection shall be deposited in the account for salaries and expenses of the Administration, and are authorized to be appropriated solely to cover the costs of examinations and other program oversight activities. Every such company shall make such reports to the Administration at such times and in such form as the Administration may require; except that the Administration is authorized to exempt from making such reports any such company which is registered under the Investment Company Act of 1940 [15 U.S.C. 80a–1 et seq.] to the extent necessary to avoid duplication in reporting requirements.

(c)Examinations of small business investment companies Each small business investment company shall be examined at least every two years in such detail so as to determine whether or not—

(1)it has engaged solely in lawful activities and those contemplated by this subchapter;

(2)it has engaged in prohibited conflicts of interest;

(3)it has acquired or exercised illegal control of an assisted small business;

(4)it has made investments in small businesses for not less than 1 year;

(5)it has invested more than 20 per centum of its capital in any individual small business, if such restriction is applicable;

(6)it has engaged in relending, foreign investments, or passive investments; or

(7)it has charged an interest rate in excess of the maximum permitted by law:

Provided, That the Administration may waive the examination

(A)for up to one additional year if, in its discretion, it determines such a delay would be appropriate, based upon the amount of debentures being issued by the company and its repayment record, the prior operating experience of the company, the contents and results of the last examination and the management expertise of the company, or

(B)if it is a company whose operations have been suspended while the company is involved in litigation or is in receivership.

(d)Valuations

(1)Frequency of valuations

(A)In general Each licensee shall submit to the Administrator a written valuation of the loans and investments of the licensee not less often than semiannually or otherwise upon the request of the Administrator, except that any licensee with no leverage outstanding shall submit such valuations annually, unless the Administrator determines otherwise.

(B)Material adverse changes Not later than 30 days after the end of a fiscal quarter of a licensee during which a material adverse change in the aggregate valuation of the loans and investments or operations of the licensee occurs, the licensee shall notify the Administrator in writing of the nature and extent of that change.

(C)Independent certification

(i)In general Not less than once during each fiscal year, each licensee shall submit to the Administrator the financial statements of the licensee, audited by an independent certified public accountant approved by the Administrator.

(ii)Audit requirements Each audit conducted under clause

(i)shall include—

(I)a review of the procedures and documentation used by the licensee in preparing the valuations required by this section; and

(II)a statement by the independent certified public accountant that such valuations were prepared in conformity with the valuation criteria applicable to the licensee established in accordance with paragraph (2).

(2)Valuation criteria Each valuation submitted under this subsection shall be prepared by the licensee in accordance with valuation criteria, which shall—

(A)be established or approved by the Administrator; and

(B)include appropriate safeguards to ensure that the noncash assets of a licensee are not overvalued.

(Pub. L. 85–699, title III, § 310, as added Pub. L. 87–341, § 9, Oct. 3, 1961, 75 Stat. 755; amended Pub. L. 89–779, § 5, Nov. 6, 1966, 80 Stat. 1360; Pub. L. 90–104, title II, § 208, Oct. 11, 1967, 81 Stat. 271; Pub. L. 100–590, title I, § 104, Nov. 3, 1988, 102 Stat. 2992; Pub. L. 102–366, title IV, §§ 406(b), 407(a), 408(b), Sept. 4, 1992, 106 Stat. 1016; Pub. L. 104–208, div. D, title II, § 208(f), (h)(1)(C), Sept. 30, 1996, 110 Stat. 3009–745, 3009–747; Pub. L. 105–135, title II, § 216, Dec. 2, 1997, 111 Stat. 2603; Pub. L. 106–554, § 1(a)(9) [title IV, § 406], Dec. 21, 2000, 114 Stat. 2763, 2763A–691.)

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