Freedom of Information and Privacy Act of 1974

Federal RegisterNov 24, 1995

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SMALL BUSINESS ADMINISTRATION

13 CFR Parts 102 and 137

Freedom of Information and Privacy Act of 1974

AGENCY: Small Business Administration.

ACTION: Proposed rule.

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SUMMARY: In response to President Clinton's government-wide regulatory

reform initiative, the Small Business Administration (SBA) has

completed a page-by-page, line-by-line review of all of its existing

regulations to determine which might be revised or eliminated. This

proposed rule would delete duplicative statutory and unnecessary

language and rewrite the remainder in plain English. There are some

substantive changes, as follows:

The proposed rule revises the Agency's regulations implementing

Executive Order 12600 and would require SBA to give submitters of

information the opportunity, at the time they submit the information,

to identify information the disclosure of which would cause them

substantial competitive harm.

The rule would establish a procedure for appealing FOIA fee

determinations which parallels the procedure for appealing a decision

to withhold information.

[[Page 57971]]

The rule would remove the Program Official from the Privacy Act

management function and vest all responsibilities in Systems Managers

and the Privacy Act Officer.

Part 137 deals with the treatment of classified information. Since

SBA generates no such documents, SBA regulations need deal only with

classified information which SBA acquires from other Agencies. The rule

would place the needed portion of Part 137 in Part 102 and eliminate

the remainder.

There are other, minor changes detailed below.

DATES: Comments must be submitted on or before December 26, 1995.

ADDRESSES: Written comments should be addressed to David R. Kohler,

Regulatory Reform Team Leader, (102), Small Business Administration,

409 3rd Street SW., Suite 13, Washington, D.C. 20416.

FOR FURTHER INFORMATION CONTACT: Timothy C. Treanor, Attorney Advisor,

Office of General Counsel, at (202) 205-6885.

SUPPLEMENTARY INFORMATION: On March 4, 1995, President Clinton issued a

Memorandum to all federal agencies, directing them to simplify their

regulations. In response to this directive, SBA has completed a page-

by-page, line-by-line review of all of its existing regulations to

determine which might be revised or eliminated.

SBA reorganized and simplified Part 102. A conversion table of

distribution follows:

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Present part 102 Proposed part 102

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Sec. 102.1(a)............................ Sec. 102.1

Sec. 102.1(b)............................ deleted

Sec. 102.2............................... deleted

Sec. 102.3(a)............................ deleted

Sec. 102.3(b)............................ deleted

Sec. 102.3(c)............................ deleted

Sec. 102.3(d)............................ deleted

Sec. 102.3(e)............................ deleted

Sec. 102.3(f)............................ deleted

Sec. 102.3(g)............................ deleted

Sec. 102.3(h)............................ deleted

Sec. 102.3(i)............................ deleted

Sec. 102.3(j)............................ deleted

Sec. 102.3(k)............................ deleted

Sec. 102.3(l)............................ Sec. 102.10

Sec. 102.4(a)............................ deleted

Sec. 102.4(b)............................ Sec. 102.2(a)

Sec. 102.4(c)............................ Sec. 102.2(b)

Sec. 102.4(d)............................ deleted

Sec. 102.4(e)(1)......................... Sec. 102.3(a)

Sec. 102.3(c)

Sec. 102.4(e)(2)......................... Sec. 102.4(b)

Sec. 102.4(e)(3)......................... Sec. 102.5

Sec. 102.5(a)............................ deleted

Sec. 102.5(b)(1)......................... Sec. 102.6(a)

Sec. 102.5(b)(2)......................... deleted

Sec. 102.5(b)(3)......................... Sec. 102.6(b)

Sec. 102.5(c)............................ deleted

Sec. 102.5(d)............................ Sec. 102.6(a)

Sec. 102.6(d)(1)(i)

Sec. 102.6(d)(2)(i)

Sec. 102.5(e)............................ Sec. 102.7

Sec. 102.5(f)............................ Sec. 102.6(d)(1)(ii)

Sec. 102.6(d)(2)(ii)

Sec. 102.5(g)............................ Sec. 102.6(d)(4)

Sec. 102.5(h)............................ Sec. 102.6(f)

Sec. 102.5(i)(1)......................... Sec. 102.6(d)(1)(i)

Sec. 102.6(d)(2)(i)

Sec. 102.5(i)(2)......................... Sec. 102.6(c)

Sec. 102.5(i)(3)......................... deleted

Sec. 102.5(i)(4)......................... deleted

Sec. 102.6(a)............................ deleted

Sec. 102.6(b)............................ Sec. 102.9(b)

Sec. 102.6(c)............................ Sec. 102.9(c)(1)

Sec. 102.6(d)............................ Sec. 102.9(a)

Sec. 102.6(e)(1)......................... Sec. 102.9(d)

Sec. 102.6(e)(2)......................... Sec. 102.9(f)(1)

Sec. 102.6(e)(3)......................... Sec. 102.9(e)

Sec. 102.7(a)(1)......................... deleted

Sec. 102.7(a)(2)......................... deleted

Sec. 102.7(a)(3)......................... deleted

Sec. 102.7(a)(4)......................... deleted

Sec. 102.7(a)(5)......................... Sec. 102.8(d)

Sec. 102.7(a)(6)......................... Sec. 102.8(b)(1)

Sec. 102.7(a)(7)......................... Sec. 102.8(b)(2)

Sec. 102.7(a)(8)......................... Sec. 102.8(b)(4)

Sec. 102.7(b)(1)......................... Sec. 102.8(a)(1)

Sec. 102.7(b)(2)......................... Sec. 102.8(a)(2)

Sec. 102.7(b)(3)......................... Sec. 102.8(a)(3)

Sec. 102.7(b)(4)......................... Sec. 102.8(a)(4)

Sec. 102.7(b)(5)(i)...................... Sec. 102.8(a)(5)

Sec. 102.7(b)(5)(ii)..................... Sec. 102.8(a)(6)

Sec. 102.7(b)(6)......................... Sec. 102.8(b)(uosp)

Sec. 102.8(c)

Sec. 102.8(e)

Sec. 102.8(h)

Sec. 102.7(b)(7)......................... Sec. 102.8(g)

Sec. 102.7(c)(1)......................... Sec. 102.8(d)

Sec. 102.7(c)(2)......................... Sec. 102.8(b)(uosp)

Sec. 102.8(b) (1-3)

Sec. 102.7(c)(3)......................... Sec. 102.8(b)(uosp)

Sec. 102.8(b)(4)

Sec. 102.7(c)(4)......................... Sec. 102.8(c)

Sec. 102.7(d)(1)......................... Sec. 102.8(l)(1)

Sec. 102.7(d)(2)......................... Sec. 102.8(m)

Sec. 102.7(d)(3)......................... Sec. 102.8(n)

Sec. 102.7(d)(4)(i)...................... Sec. 102.8(i)

Sec. 102.7(d)(4)(ii)..................... Sec. 102.8(i)

Sec. 102.7(d)(4)(iii).................... Sec. 102.3(c)

Sec. 102.7(d)(5)......................... deleted

Sec. 102.7(e)............................ Sec. 102.8(o)

Sec. 102.8............................... Sec. 102.13

Sec. 102.20(a)........................... Sec. 102.20(a)(1)

Sec. 102.20(b)........................... Sec. 102.20(a)(2)

Sec. 102.20(c)........................... Sec. 102.20(a)(3)

Sec. 102.20(d)........................... Sec. 102.20(b)

Sec. 102.20(e)........................... Sec. 102.20(c)

Sec. 102.21(a)........................... deleted

Sec. 102.21(b)........................... deleted

Sec. 102.21(c)........................... Sec. 102.26

Sec. 102.21(d)........................... deleted

Sec. 102.21(e)........................... Sec. 102.24

Sec. 102.21(f)........................... Sec. 102.25

Sec. 102.21(g)........................... deleted

Sec. 102.21(h)........................... deleted

Sec. 102.22(a)(1)........................ Sec. 102.32(b)

Sec. 102.22(a)(2)........................ Sec. 102.32(c)

Sec. 102.22(a)(3)........................ Sec. 102.32(d)

Sec. 102.22(a)(4)........................ Sec. 102.32(e)

Sec. 102.22(a)(5)........................ deleted

Sec. 102.22(a)(6)........................ deleted

Sec. 102.22(a)(7)........................ deleted

Sec. 102.22(b)(1)........................ Sec. 102.32(a)

Sec. 102.22(b)(2)........................ deleted

Sec. 102.22(b)(3)........................ deleted

Sec. 102.22(b)(4)........................ deleted

Sec. 102.22(b)(5)........................ deleted

Sec. 102.22(c)........................... deleted

Sec. 102.22(d)........................... Sec. 102.29

Sec. 102.23UOP........................... Sec. 102.22(a)

Sec. 102.23(a)........................... Sec. 102.22(b)

Sec. 102.23(b)........................... Sec. 102.22(c)

Sec. 102.23(c)........................... Sec. 102.22(d)

Sec. 102.23(d)........................... Sec. 102.22(e)

Sec. 102.23(e)........................... Sec. 102.22(f)

Sec. 102.23(f)........................... Sec. 102.22(g)

Sec. 102.23(g)........................... Sec. 102.22(h)

Sec. 102.23(h)........................... Sec. 102.22(i)

Sec. 102.23(i)........................... Sec. 102.22(j)

Sec. 102.23(j)........................... Sec. 102.22(k)

Sec. 102.23(k)........................... Sec. 102.22(l)

Sec. 102.24.............................. Sec. 102.28

Sec. 102.25.............................. deleted

Sec. 102.26(a)........................... deleted

Sec. 102.26(b)(UOP)...................... deleted

Sec. 102.26(b)(1)........................ deleted

Sec. 102.26(b)(2)........................ deleted

Sec. 102.26(b)(3)........................ Sec. 102.60

Sec. 102.26(b)(4)........................ Sec. 102.47(a)

Sec. 102.47(b)

Sec. 102.26(c)........................... deleted

Sec. 102.27(a)........................... Sec. 102.61(a)

Sec. 102.27(b)(UOP)...................... Sec. 102.61(b)

Sec. 102.27(b)(1)........................ Sec. 102.61(a)

Sec. 102.27(b)(2)........................ Sec. 102.61(a)

Sec. 102.27(b)(3)........................ Sec. 102.61(a)

Sec. 102.27(c)........................... Sec. 102.61(a)

Sec. 102.27(d)........................... Sec. 102.61(a)

Sec. 102.27(e)........................... Sec. 102.61(a)

Sec. 102.27(f)........................... Sec. 102.61(a)

Sec. 102.27(g)........................... Sec. 102.61(a)

Sec. 102.28(a)........................... Sec. 102.34(a)

Sec. 102.58

Sec. 102.28(b)........................... Sec. 102.34(b)

Sec. 102.28(c)........................... Sec. 102.34(c)

Sec. 102.28(d)........................... Sec. 102.36(b)

Sec. 102.28(e)........................... Sec. 102.35

Sec. 102.36

Sec. 102.29(a)........................... Sec. 102.38(c)

Sec. 102.29(a)........................... Sec. 102.39

Sec. 102.29(b)........................... Sec. 102.41

Sec. 102.29(c)........................... Sec. 102.40

Sec. 102.29(d)........................... deleted

Sec. 102.30(a)........................... Sec. 102.42

Sec. 102.30(b)........................... Sec. 102.43

Sec. 102.46

Sec. 102.30(b)........................... Sec. 102.47

Sec. 102.30(c)........................... deleted

Sec. 102.30(d)........................... Sec. 102.47(a)

Sec. 102.47(b)

Sec. 102.31(a)........................... Sec. 102.48

Sec. 102.49(c)

Sec. 102.50

Sec. 102.31(b)........................... Sec. 102.51

Sec. 102.31(c)........................... Sec. 102.52

Sec. 102.31(d)........................... Sec. 102.52

Sec. 102.31(e)........................... Sec. 102.53(b)(1)

Sec. 102.53(c)(2)

Sec. 102.31(f)........................... Sec. 102.58(b)(3)

Sec. 102.58(c)(2)

Sec. 102.32(a)(1)........................ Sec. 102.21(a)

Sec. 102.32(a)(2)........................ Sec. 102.21(b)

Sec. 102.32(a)(3)........................ Sec. 102.55

Sec. 102.32(a)(4)........................ deleted

Sec. 102.32(b)........................... deleted

Sec. 102.32(c)........................... Sec. 102.32(f)

[[Page 57972]]

Sec. 102.33(a)........................... Sec. 102.23(a)

Sec. 102.33(b)........................... deleted

Sec. 102.33(c)........................... Sec. 102.56

Sec. 102.33(d)........................... deleted

Sec. 102.33(e)........................... Sec. 102.57

Sec. 102.33(f)........................... Sec. 102.58

Sec. 102.33(g)........................... Sec. 102.58(d)

Sec. 102.58(e)

Sec. 102.33(h)........................... deleted

Sec. 102.34.............................. Sec. 102.59

Sec. 102.35(a)........................... Sec. 102.27(d)(uosp)

Sec. 102.35(b)........................... Sec. 102.27(d) (1-3)

Sec. 102.35(c)........................... Sec. 102.27(e)

Sec. 102.36(a)........................... Sec. 102.27(a)

Sec. 102.36(b)........................... Sec. 102.27(b)

Sec. 102.36(c)........................... Sec. 102.27(c)

Sec. 102.37.............................. Sec. 102.54

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The principal substantive changes are as follows: (1) Changes in

Implementation of Executive Order 12600. Under the present regulations,

when someone requests business information even arguably exempt under 5

U.S.C. Sec. 552(b)(4), SBA notifies the submitter and allows five

working days to identify information the disclosure of which would

cause substantial competitive harm. If SBA decides that it must

disclose such information anyway, SBA must give the submitter an

additional five working days to respond. The operation of this

regulation makes it difficult for SBA to respond to FOIA requests

within the statutory ten working day limit. To facilitate FOIA's ten

working day requirement, SBA proposes to ask the submitter to identify

this confidential information at the time of submission, and that the

Agency thereafter would notify the submitter only if it intended to

disclose information previously identified as confidential, or other

information the release of which the Agency believed would cause

substantial competitive harm. This proposed regulation would also

provide that where SBA decided to release information the disclosure of

which the submitter sought to prevent, SBA would give the submitter the

``maximum notice possible before disclosure without violating the time

constraints imposed by the Freedom of Information Act'' rather than

five working days. SBA proposes this change so that the Agency can

assure that its responses to FOIA requests remain within the ten

working day time limits imposed by the Freedom of Information Act

itself.

(2) Adoption of an Appeals Process for Fee Determinations. This

rule would establish a quick and simple appeal procedure for requesters

who are dissatisfied with the fee SBA has charged for their FOIA

requests. The procedure parallels the process by which requesters may

appeal SBA decisions to withhold information. Interest would begin to

accrue 31 days after SBA's response to the request, regardless of a fee

appeal.

(3) Elimination of Program Official from Privacy Act Regulations.

Under current Privacy Act regulations, Systems Managers function as the

primary liaison with Privacy Act requesters, conveying requests to

Program Officials and responses to the requesters. SBA has decided to

streamline by empowering Systems Managers to assume the Program

Official's responsibilities directly. Under the new rule, requesters

will direct their requests to Systems Managers, who will make initial

decisions as to access and amendment.

(4) Elimination of Part 137. SBA enacted Part 137 in 1984 in

response to Executive Order 12356, which required Agencies to have

regulations dealing with their handling of classified material. Since

SBA has no classification authority, SBA has decided to repeal that

portion of the existing regulation, maintaining only a provision

(Sec. 102.12) which refers requests for any classified material in

SBA's possession back to their originating agencies.

SBA also proposes some minor changes proposed to its fee structure.

SBA currently waives fees less than $15; the proposed regulations would

waive fees less than $25. SBA currently charges $18 an hour for

professional record searches and $9 for clerical searches. Since SBA

generally does not use clerical personnel to perform manual searches,

and computer searches are billed separately, at cost, the proposed

regulations eliminate the reference to clerical searches and bill all

searches at $18 an hour.

Section By Section Analysis

Proposed Sec. 102.1 describes the purpose of Subpart A: to describe

SBA's compliance with the Freedom of Information Act.

Proposed Sec. 102.2 describes what documents requesters can obtain

by going to offices and what documents requesters must obtain through

writing. Proposed Sec. 102.2 directs the requester to the nearest

District Office or to the Agency's FOIA office; either will forward the

request to the proper office.

Proposed Sec. 102.3 describes how long SBA may take to respond to a

FOIA request. Paragraphs (a) and (c) set forth the statutory

requirements and (with respect to the fee portion) OMB requirements for

all Agencies (See 52 FR 10012). Paragraph (b), which provides that the

clock does not begin to run until the proper office receives the

request, replicates the present regulation.

Proposed Sec. 102.4 describes possible responses to a FOIA request,

including notices of appeal rights. Proposed Sec. 102.5 makes it clear

that SBA will supply only that information that is in the office as of

the close of the day upon which the office receives the request. None

of these proposed sections vary from the current regulations.

Proposed Secs. 102.6 and 102.8 describe SBA's compliance with

Executive Order 12600. Businesses submitting information after January

1, 1996 can designate items whose disclosure would cause them

substantial competitive harm. If SBA proposes to release information so

designated, or other information which SBA believes could cause such

harm, SBA will give notice to the submitter and allow five business

days to submit reasons why SBA should not release the information. If

SBA decides to release the information over the submitter's objections,

SBA then will give the submitter as much additional notice as feasible

consistent with SBA's responsibilities under the Freedom of Information

Act. With respect to information submitted prior to January 1, 1996,

SBA's procedure will remain the same as it is now, except that the

notice SBA gives in the event that it intends to release information

over the submitter's objection will now be the maximum notice

consistent with the Agency's obligations under FOIA, rather than five

working days.

Proposed Sec. 102.8 sets forth a fee schedule which, with two minor

exceptions, remains the same: (1) A waiver of fees under $25, instead

of the present regulation's $15; (2) A charge of $18 per hour for

manual searches rather than $9 per hour for clerical searches and $18

per hour for professional searches. At SBA, professionals typically

conduct manual searches. Computer searches are billed at SBA's actual

cost and handled separately in the regulations. By setting all search

fees at $18 per hour, SBA can simplify recordkeeping. The new

regulation also codifies the present practice of charging the actual

cost of certifying records and sending records (at the request of the

FOIA requester) by other than first class mail. The remainder of the

proposed regulation simply restates the current regulation.

Proposed Sec. 102.9 sets forth a proposed appeal system for both

denial of records and for fees which parallels the current system for

appealing SBA decisions to withhold information.

[[Page 57973]]

Proposed Sec. 102.10 matches the present regulations concerning the

Public Index.

Proposed Sec. 102.11 notes that if the requester asks for a

document generated by another Agency, SBA will forward it to the Agency

which generated the document. This process implements policy guidance

which the Department of Justice has given Agencies on this issue.

Proposed Sec. 102.12 deals with a particular sort of document

generated from another Agency: classified documents. This section is

all that remains of present Part 137. SBA had previously issued that

Part to establish the system by which SBA would manage classified

documents, as required by Executive Order 12356. However, SBA does not

generate classified documents and has neither classification nor

declassification authority. Accordingly, any classified documents in

SBA's possession were generated by another Agency. SBA will refer any

request for such a document to the generating Agency, just as it does

with all documents generated by another Agency.

Proposed Sec. 102.13 matches the present regulations concerning

compulsory process against SBA, except that the Associate General

Counsel for Litigation may under the proposed regulation delegate

authority to resist a subpoena to field counsel.

SBA has substantially reorganized Subpart B, but without

significant substantive changes. Proposed Sec. 102.20 describes the

purpose of the Privacy Act subpart. Proposed Sec. 102.21 sets forth the

basic principles of privacy maintenance. Proposed Sec. 102.22 describes

the circumstances, unchanged from the present, under which SBA will

disclose records. In proposed Sec. 102.23, SBA notes that personnel

files are not governed by Part 102 but rather by 5 CFR Parts 293 and

297. It also notes that EEO Complaint files are governed by 29 CFR Part

1611. This is the state of the law; the proposed regulation corrects

anachronistic references in present Part 102. Proposed Secs. 102.24,

102.25, and 102.26 provide definitions for terms used in the

regulations. Proposed Sec. 102.27 describes records which are exempt

from the Privacy Act under certain circumstances, or which are exempt

on a regular basis from certain provisions of the Privacy Act for all

purposes. This section replicates present Secs. 102.35 and 102.36, with

the single exception that the new regulation does not exempt EEO

Complaint files, Litigation and Claims files, Standards of Conduct

files, and Civil Rights Compliance files from the full range of Privacy

Act provisions since they are not records maintained by the Inspector

General. Proposed Sec. 102.28 makes it clear that the Privacy Act does

not give individuals access to records compiled for civil litigation.

Proposed Secs. 102.29 through 102.33 establish the responsibilities

of SBA employees who administer the Privacy Act. With one important

exception, these responsibilities remain the same. The present

regulations divide Privacy Act responsibilities among the Privacy Act

Officer, the Program Official for each program or office, and the

Systems Manager for each program or office. The new regulations

eliminate Program Officials from Privacy Act responsibilities and

allocate most of their responsibilities to the Systems Managers. This

will free Program Officials to discharge their other substantive SBA

duties.

Proposed Secs. 102.34-102.41 provide instructions for a person who

has records in an SBA system of records and who wants to look at those

records. Proposed Secs. 102.42-102.53 provide instructions for a person

who wishes to have his SBA record amended. Proposed Sec. 102.54 governs

judicial review. None of these sections reflect any substantive changes

from the present regulations.

Proposed Secs. 102.55 through 102.60 group together miscellaneous

commonly-asked Privacy Act questions which the regulations currently

treat in disparate sections of Part 102. These proposed regulations do

not enact any substantive changes in the answers to those questions,

except that (1) SBA will no longer provide a first copy of files

requested under the Privacy Act for free, (2) SBA will waive fees under

$25 (instead of the current $15) for Privacy Act requests and, (3)

noncustodial parents will not be allowed to obtain their children's

records under the Privacy Act.

SBA's current regulations regarding the Computer Matching and

Privacy Protection Act of 1988 are moved to Sec. 102.61. Under the

proposed regulation, the statutory provisions are incorporated by

reference rather than separately set out.

The proposed regulations eliminate references to various

recordkeeping and reporting requirements which have been mandated by

statute; since the statute imposes those requirements on SBA it would

be superfluous to restate them in regulations.

These proposed regulations eliminate many existing provisions of

Part 102 either because they are duplicative or because they set forth

in regulation provisions which are better governed by internal Agency

guidance. For example, the proposed regulations do not detail the

recordkeeping obligations of the Privacy Act Officer. This does not

mean, of course, that SBA will not comply with the recordkeeping

requirements of the Privacy Act. It simply indicates that it will be an

Agency decision, not subject to the provisions of the Administrative

Procedures Act, as to which of its employees discharges which of the

recordkeeping responsibilities.

The elimination of an existing provision is not--except as noted

above--meant to change substantive procedures. For example, the

proposed regulations would eliminate those provisions of present

Sec. 102.3 which set forth what documents the SBA would routinely make

available and what documents the SBA routinely withholds. This does not

signal a change in SBA policy on withholding. SBA will continue to

provide all required documents, along with such additional documents as

it considers appropriate, but SBA sees no reason to give this

unexceptional policy the weight of regulation.

Compliance With Executive Orders 12612, 12778, and 12866, the

Regulatory Flexibility Act (5 U.S.C. 601, et seq.), and the Paperwork

Reduction Act (44 U.S.C. Ch. 35)

SBA certifies that this proposed rule would not have a significant

economic impact on a substantial number of small entities within the

meaning of Executive Order 12866 or the Regulatory Flexibility Act, 5

U.S.C. 601, et seq. This proposed regulation would merely make the

Agency's FOIA and PA procedures clearer. It will institute governmental

efficiencies at no cost to small businesses. Therefore, it is not

likely to have an annual economic effect of $100 million or more,

result in a major increase in costs or prices, or have a significant

adverse effect on competition or the United States economy.

For purposes of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA

certifies that this proposed rule, if adopted in final form, would

contain no new reporting or record keeping requirements.

For purposes of Executive Order 12612, SBA certifies that this rule

would not have any federalism implications warranting the preparation

of a Federalism Assessment.

For purposes of Executive Order 12778, SBA certifies that this rule

is drafted, to the extent practicable, in accordance with the standards

set forth in Section 2 of that Order.

[[Page 57974]]

List of Subjects

13 CFR Part 102

Freedom of information, Privacy.

13 CFR Part 137

Classified information.

For the reasons set forth above, SBA hereby proposes to amend Title

13 of the Code of Federal Regulations, as follows:

1. Part 102 would be revised to read as follows:

PART 102--RECORD DISCLOSURE AND PRIVACY

Subpart A--Disclosure of Information

Sec.

102.1 Purpose.

102.2 How can I get records from SBA?

102.3 How long will it take for SBA to respond to my request for

records?

102.4 How will SBA respond to my request?

102.5 If SBA grants my request, which records will be supplied?

102.6 How will SBA respond to requests for business information?

102.7 Procedures for submitters of business information to SBA

after January 1, 1996.

102.8 What fees will SBA charge?

102.9 How may I appeal a denial of my request for information or a

fee determination?

102.10 How can I get the Public Index of SBA materials?

102.11 What happens if I ask SBA for a record that another Federal

Agency generated?

102.12 What happens if I ask for classified records?

102.13 What happens if I subpoena records or testimony of employees

in connection with a civil lawsuit, criminal proceeding, or

administrative proceeding?

Subpart B--The Privacy Act

102.20 What privacy rights does this subpart regulate?

102.21 How will SBA maintain records?

102.22 When will SBA disclose records?

102.23 Special rules about personnel and equal employment

opportunity files.

102.24 What is a record?

102.25 What is a system of records?

102.26 What does this subpart mean by ``person to whom a record

pertains'' or ``you''?

102.27 What records are partially exempt from the provisions of the

Privacy Act?

102.28 Information compiled for civil action.

102.29 Who administers SBA's responsibilities under the Privacy

Act?

102.30 How can I write to the Privacy Act Officer?

102.31 Who appoints Systems Managers?

102.32 What do Systems Managers do?

102.33 How can I write to a Systems Manager?

102.34 How can I see records kept on me?

102.35 How long will it take SBA to respond to my request?

102.36 How will SBA respond to my request?

102.37 How may I appeal a decision to deny me access to my records?

102.38 To whom should my appeal be addressed?

102.39 When must I appeal to the Privacy Act Officer?

102.40 When will SBA respond to my appeal?

102.41 How will SBA respond to my appeal?

102.42 How can I get SBA to amend a record kept on me?

102.43 What should my petition say?

102.44 For what reasons will SBA amend my record?

102.45 Will SBA ask me for more information after I make my

request?

102.46 When will SBA respond to my request?

102.47 How will SBA respond to my request?

102.48 How do I appeal a refusal to amend a record kept on me?

102.49 To whom should I address my appeal?

102.50 By when must I submit my appeal?

102.51 By what standards will the Privacy Officer review my appeal?

102.52 When will SBA respond to my appeal?

102.53 How will SBA respond to my appeal?

102.54 How can I obtain judicial review about an SBA Privacy Act

decision?

102.55 What must SBA tell the individuals from whom it collects

information?

102.56 Will SBA sell my name or address?

102.57 Do I have to give SBA my Social Security Number?

102.58 When will SBA show personnel records to my representative?

102.59 What fees will SBA charge me for my records?

102.60 May I be informed of disclosures made of my record?

102.61 Matching Program procedures.

Authority: 5 U.S.C. 552; 44 U.S.C. et seq.; 5 U.S.C. 552a; 18

U.S.C. 4203 (a)(1); 31 U.S.C. 1 et seq.; 31 U.S.C. 67 et seq.; E.O.

12600, 3 CFR 1987 Comp. p. 235.

PART 102--RECORD DISCLOSURE AND PRIVACY

Subpart A--Disclosure of Information

Sec. 102.1 Purpose.

This subpart describes the procedures by which the Small Business

Administration makes documents available under the Freedom of

Information Act (5 U.S.C. 552).

Sec. 102.2 How can I get records from SBA?

(a) You can go to the SBA office at which the records are kept, and

photocopy any final SBA decision, policy statement, or standard

operating procedure.

(b) For copies of all other records, you must send a letter request

to the SBA office at which the records are kept. The letter must

describe specific records you want. If you don't know which SBA office

keeps the records, you may send your letter to the nearest SBA District

Office. You may also send your letter to the Chief, Freedom of

Information Act and Privacy Act, 409 Third Street SW., Suite 5900,

Washington D.C. 20416. The office receiving your letter will forward it

to the correct office.

Sec. 102.3 How long will it take for SBA to respond to my request for

records?

(a) If you have met the fee requirements of Sec. 102.8, SBA will

respond within ten working days after the correct office receives your

request, except under unusual circumstances. Unusual circumstances

include especially large numbers of records requested, records not

located in the office handling the request, or the need to consult with

more than one interested government office. If you make your request on

behalf of another person, SBA will respond within ten working days

after you present a document signed by that person authorizing you to

request information on his behalf. If you make your request on behalf

of another person without including such signed authorization, SBA will

inform you of the requirements of this paragraph.

(b) If you send your request to the wrong office, that office will

send it to the correct office within ten working days and will send you

an acknowledgement letter.

with your request within ten working days, SBA will respond within

twenty working days of the date upon which the correct office receives

your request, and will notify you that the extra time is required.

Sec. 102.4 How will SBA respond to my request?

Within the time limit described in Sec. 102.3, SBA will either:

(a) Give you the records you requested,

(b) Give you some or none of the records you requested, explain why

SBA has decided not to comply fully with your request, citing specific

exemptions where applicable, and explain how to appeal that decision,

either paid your fee or committed to the amount of fee you will pay, as

applicable.

Sec. 102.5 If SBA grants my request, which records will be supplied?

SBA will give you copies of all records or portions of records

requested which are in the processing office as of the close of the day

upon which that office received your request.

[[Page 57975]]

Sec. 102.6 How will SBA respond to requests for business information?

(a) What is business information? Business information is a trade

secret, or commercial or financial information, contained in records

provided to the SBA by any person and which may be protected from

disclosure under Exemption Four of the Freedom of Information Act (5

U.S.C. 552(b)(4)).

(b) Who is the submitter of business information? The submitter is

the business entity to which the business information pertains and

which submitted the information to SBA, either directly or through an

intermediary such as a bank, SBIC licensee, or representative.

to the general public? SBA will disclose such business information upon

request and payment of any required fees.

(d) What if the business information has not previously been

released to the general public? Except as provided in paragraph (e) of

this section:

(1) For all business information submitted prior to January 1,

1996:

(i) Unless SBA intends to deny the request to disclose business

information entirely, SBA will notify the submitter of the request upon

receipt, and will describe or provide the submitter with a copy of the

records it intends to disclose.

(ii) SBA will ask the submitter to identify business information

which would likely cause substantial competitive harm if disclosed and

why the harm would occur. The submitter will have 5 working days to

provide its response.

(2) For all business information submitted after January 1, 1996:

(i) Upon receipt of the request, SBA will notify the submitter when

it intends to release business information which previously has been

identified by the submitter as confidential and likely to cause

substantial competitive harm if disclosed. If other business

information is requested which SBA believes may cause substantial

competitive harm if disclosed, SBA will notify the submitter of that

request as well.

(ii) SBA will ask the submitter to explain why the identified

information would be likely to cause substantial competitive harm if

disclosed. The submitter will have 5 working days to provide its

response.

(3) SBA will carefully consider the submitter's objections to

disclosure, if any, but will not be bound by it. If a submitter objects

to the disclosure of information which SBA believes it must disclose,

SBA will disclose that information.

(4) If SBA decides to disclose information which the submitter

requested be withheld, SBA will give the submitter the maximum notice

possible before disclosure without violating the time constraints

imposed by the Freedom of Information Act. In this notice, SBA will

tell the submitter what it intends to disclose, and when it intends to

make disclosure.

(e) If SBA does not intend to release any business information it

will not notify the submitter of the request.

(f) SBA will promptly notify the submitter of any suit filed

against SBA to compel disclosure.

Sec. 102.7 Procedures for submitters of business information to SBA

after January 1, 1996.

(a) Submitters may mark or identify business information at the

time of submission which would likely cause them substantial

competitive harm if disclosed.

(b) After ten years from submission SBA will regard the previous

assertion as no longer in effect unless the submitter has renewed its

assertion in writing that disclosure would likely cause substantial

competitive harm.

Sec. 102.8 What fees will SBA charge?

(a) Basic fees. (1) For manual record search. SBA will charge $18

per hour.

(2) For computer record searches. SBA will charge the actual costs.

(3) For review and disclosure determinations. SBA will charge $18

per hour.

(4) Duplication. SBA will charge ten cents per page for photocopy

duplication, and the actual cost of reproduction for other methods.

(5) Certifying records. SBA will charge actual costs.

(6) For requested special types of delivery other than first-class

mail. SBA may charge the actual cost.

(b) If you are a representative of an educational institution, a

non-commercial scientific institution, or a member of the news media.

SBA will charge you only for the cost of duplication after the first

100 pages.

(1) What is an educational institution? A state-certified

preschool, elementary or secondary school, an accredited college or

university, an accredited institution of professional education, or any

accredited or state-certified institute of vocational education which

operates a program or programs of scholarly research.

(2) What is a non-commercial scientific institution? An

organization which is operated solely for the purpose of conducting

scientific research, the results of which are not intended to promote

any particular product or industry.

(3) What is a representative of an educational or non-commercial

scientific institution? A requester seeking records on behalf of that

institution who is authorized by that institution to do so, and who is

seeking those records for scholarly or scientific reasons, as long as

there is no commercial purpose to the request for records.

(4) What is a representative of the news media? An individual who

is actively gathering news for an entity that is organized and operated

to disseminate information to the general public. To be considered

``news media'', this organization may provide information by

subscription and may target its dissemination to a narrow section of

the general public as long as any member of the general public may

purchase information from it. If you are not employed by the news

media, but have a reasonable expectation that you will sell the

information you obtain to the news media, SBA may conclude that you are

a representative of the news media. SBA will not consider you to be a

representative of the news media if your request has a commercial

purpose, beyond the commercial purpose of selling information to the

general public.

general public, SBA will not charge you for the first two hours of

search time, the first hundred pages of photocopy duplication, or for

review and disclosure determinations. The general public is anyone who

is not a representative of an educational institution, a representative

of the news media, or a commercial requester.

(d) Commercial requester. If you are a commercial requester you

must pay all the basic fees set forth in paragraph (a) of this section.

A commercial requester is anyone seeking information for commercial,

trade, or profit interests of the requester or someone he or she is

trying to help.

(e) How does SBA determine what category of requester I am? The SBA

office processing your request will determine the appropriate category.

If you are not a commercial requester, you must show us what category

of requester you are.

(f) Tell us how much you are willing to pay. To get the quickest

possible response, you must tell SBA how much money you are willing to

pay in fees when you make your request for records.

(g) If you don't tell us how much you are willing to pay and SBA

estimates that the fee will exceed $25.00, SBA

[[Page 57976]]

will estimate the fee and will not process your request until you tell

SBA that you are willing to pay the estimated amount, or until you

narrow the request so that the fee is less than $25.

(h) SBA will waive fees less than $25.

(i) If the fee is more than $250, or if you have a history of

failing to pay FOIA fees in a timely manner, SBA will ask you to remit

the estimated amount and any past due charges before sending you the

records.

(j) Who determines the fee? The SBA office which processes your

request.

(k) When do you pay the fee? You will be billed when SBA responds

to your request and you must pay within thirty-one calendar days.

(l) Failure to pay fees. (1) After the thirty-first day following

the date upon which you were billed, SBA will charge interest at the

maximum rate allowed under Title 31 of the United States Code, section

3717.

(2) If you owe fees for previous FOIA responses, SBA will not

respond to further requests unless you satisfy the amount due.

(3) If you do not pay the amount due within ninety calendar days of

the date you must pay, SBA may notify consumer credit reporting agents

of your delinquency.

(m) Unsuccessful searches. If SBA's search for records is

unsuccessful, it will still bill you for the search.

(n) Multiple requests. If you make multiple requests at the same

time, or at roughly the same time, SBA will aggregate your requests for

records. In no case will SBA give you more than the first two hours of

search time, or more than the first one hundred pages of duplication

without charge.

(o) Reduction of fees in the public interest. If SBA determines

that disclosure of the information you seek is in the public interest

because it is likely to contribute significantly to public

understanding of the operations or activities of the government, and

that you are not seeking the information in your own commercial

interests, SBA may waive or reduce the fee.

Sec. 102.9 How may I appeal a denial of my request for information or

a fee determination?

(a) You must write to the Chief, Freedom of Information Act and

Privacy Act Office at 409 Third Street SW., Suite 5900, Washington,

D.C. 20416.

(b) The Chief must receive your written appeal within 45 calendar

days of the date of the SBA fee determination from which you are

appealing.

(c)(1) If you are appealing a denial of your request for

information, the appeal must contain the following information:

(i) What records were denied.

(ii) The name and title of the individual responsible for denying

the request and the address of his or her office.

(iii) Any other information you deem appropriate.

(2) If you are appealing a fee determination, the appeal must

contain the following information:

(i) The address of the office which made the fee determination from

which you are appealing.

(ii) The fee that office charged.

(iii) The fee, if any, you believe should have been charged.

(iv) The reasons you believe that your fee should be lower than the

fee which the Agency charged.

(v) Any other information you deem appropriate.

(d) If anybody other than the Chief was the person who originally

made the determination you are appealing, the Chief will decide your

appeal. If the Chief was the person who originally made the

determination you are appealing, SBA's Assistant Administrator for

Hearings and Appeals will decide your appeal.

(e) SBA will take no more than twenty working days from the date

upon which it receives your appeal to decide it, unless unusual

circumstances require a thirty working days response time.

(f)(1) If you are appealing a decision to deny your request for

records, SBA will in response either:

(i) Give you the records you requested, or

(ii) Decline to give you the records you requested, tell you why

SBA has concluded that the records were exempt from disclosure under

the Freedom of Information Act, and tell you how to obtain judicial

review of SBA's decision.

(2) If you are appealing a fee determination, SBA will in response

either charge the fee you request or charge another fee and explain why

SBA has concluded that the fee it has decided to charge is appropriate.

Sec. 102.10 How can I get the Public Index of SBA materials?

(a) The Public Index is a document which provides identifying

information about official documents which SBA has issued.

(b) SBA has administratively determined, as permitted by the

Freedom of Information Act, that periodic publication and distribution

is unnecessary and impracticable.

Operating Procedure 40 03. You can review and photocopy the Public

Index, along with Standard Operating Procedure 40 03, at any SBA

office.

Sec. 102.11 What happens if I ask SBA for a record that another

Federal Agency generated?

Such a request is a request directed to the wrong office, as that

term is used in Sec. 102.3(b). SBA will forward your request to the

generating Agency.

Sec. 102.12 What happens if I ask for classified records?

SBA does not have original classification authority. Therefore, any

national security information or materials (as defined by Executive

Order 12356) in SBA's possession must have been classified by another

agency. If you ask for such material, SBA will forward that request to

the agency which originally classified those materials, with its

recommendations, if any.

Sec. 102.13 What happens if I subpoena records or testimony of

employees in connection with a civil lawsuit, criminal proceeding or

administrative proceeding?

(a) If your subpoena requires either the testimony of an SBA

employee or records within SBA's possession, the records themselves, or

both, the person to whom the subpoena is directed must consult with SBA

counsel in the relevant SBA office, who will in turn obtain approval

from the Associate General Counsel for Litigation. The Associate

General Counsel may delegate the authorization for production of

documents or testimony as appropriate to local SBA counsel.

(b) If SBA counsel approves of compliance with the subpoena, SBA

will comply.

will not comply, and will base such noncompliance on an appropriate

legal basis such as privilege or a statute.

(d) A copy of a subpoena relating to a criminal matter should be

provided by SBA counsel to SBA's Inspector General.

Subpart B--The Privacy Act

Sec. 102.20 What privacy rights does this subpart regulate?

This subpart establishes SBA's policy and procedures safeguarding

an individual against an invasion of personal privacy.

(a) Except as otherwise provided by law or regulation, SBA will

permit you to do the following:

(1) Determine what records pertaining to you are collected,

maintained, used, or disseminated by the SBA;

(2) Object when records pertaining to you are obtained by SBA for a

particular

[[Page 57977]]

purpose and are proposed to be used or made available for another

purpose without your consent; and

(3) Gain access to information pertaining to you in records, have a

copy made of all or any portion of those records, and correct or amend

such records as appropriate;

(b) SBA will collect, maintain, use, or disseminate any record of

identifiable personal information in a manner that assures that such

action is for a necessary and lawful purpose, that the information is

current and accurate for its intended use, and that adequate safeguards

are provided to prevent misuse of such information.

552a (Privacy Act of 1974) only where an important public policy need

for such exemption has been determined by specific statutory authority.

Sec. 102.21 How will SBA maintain records?

SBA records will:

(a) Contain only such information about an individual as is

relevant and necessary to accomplish a purpose of the Agency required

to be accomplished by statute, regulation, or by Executive Order of the

President.

(b) Be comprised, to the maximum practical extent, of an

individual's own statements when the information may result in an

adverse determination about an individual's rights, benefits, or

privileges under a Federal program.

Sec. 102.22 When will SBA disclose records?

SBA will not disclose to anyone any record which is contained in a

system of records, except that it will disclose a record:

(a) To the person about whom the record is maintained, or to that

person's agent, within the limits discussed in this subpart.

(b) To those employees of the Agency who have a need for the record

to perform their duties;

(d) For a routine use of the record compatible with the purpose for

which it was collected;

(e) To the Bureau of the Census for purposes of planning or

carrying out a census, survey, or related activity pursuant to Title

13, United States Code;

(f) To a recipient who has provided the Agency with advance

adequate written assurance that the record will be used solely as a

statistical research or reporting record, where the record is

transferred in a form that is not individually identifiable;

(g) To the National Archives of the United States as a record which

has sufficient historical or other value to warrant its continued

preservation by the U.S. Government, or for evaluation by the

Administrator of General Services or his or her designee to determine

whether the record has such value;

(h) To another agency or to an instrumentality of any governmental

jurisdiction within or under the control of the United States for a

civil or criminal law enforcement activity if:

(1) The activity is authorized by law, and

(2) The head of the agency or instrumentality has made a written

request to the Privacy Act Officer specifying the particular portion

desired and the law enforcement activity for which the record is

sought;

(i) To a person pursuant to a showing of compelling circumstances

affecting the health or safety of an individual. Upon disclosure

notification will be transmitted to the last known address of such

individual;

(j) To either House of Congress, or, to the extent of matter within

its jurisdiction, any committee or subcommittee thereof, or any joint

committee of Congress or subcommittee of any such joint committee;

(k) To the Comptroller General, or any of his or her authorized

representatives, in the course of the performance of the duties of the

General Accounting Office;

(l) Pursuant to the order of a court of competent jurisdiction; or

(m) To a consumer reporting agency in accordance with section

3711(f) of title 31.

Sec. 102.23 Special rules about personnel and equal employment

opportunity files.

(a) All SBA files which the Office of Personnel Management

determines are personnel files will be governed by the provisions of

parts 293 and 297 of Title 5 of the Code of Federal Regulations.

(b) All Equal Employment Opportunity complaint files will be

governed by the provisions of part 1611 of Title 29 of the Code of

Federal Regulations.

Sec. 102.24 What is a record?

A record is information which SBA maintains on an individual and

which includes either his name or some other symbol (such as a

fingerprint, a social security number, or a photograph) by which he or

she can be identified.

Sec. 102.25 What is a system of records?

A system of records is one or more records which SBA routinely

keeps for official purposes, and from which SBA can retrieve records by

using a name or personal identifier.

Sec. 102.26 What does this subpart mean by ``person to whom a record

pertains'' or ``you''?

When this subpart refers to the ``person to whom a record

pertains'' or uses the pronoun ``you'', it refers to a United States

citizen or a lawfully admitted alien. It does not refer to a

corporation, partnership, or sole proprietorship.

Sec. 102.27 What records are partially exempt from the provisions of

the Privacy Act?

(a) The following systems of records are exempt from certain

provisions of the Privacy Act: Audit Reports (system of records #SBA

015), Litigation and Claims Files (#SBA 070), Personnel Security Files

(#SBA 100), Security and Investigations Files (#SBA 120), Office of

Inspector General Referrals (#SBA 125), Investigations Division

Management Information System (#SBA 130), and Standards of Conduct

Files (#SBA 140).

(b) The provisions of the Privacy Act from which these systems of

records are exempt are subsections (c)(3)(Accounting of Certain

Disclosures), (d)(Access to Records), (e)(1), 4G, H, and I (Agency

Requirements), and (f)(Agency Rules) of the Privacy Act.

from the provisions of the Privacy Act described in paragraph (b) in

order to:

(1) Prevent the subject of investigations from frustrating the

investigatory process;

(2) Protect investigatory material compiled for law enforcement

purposes;

(3) Fulfill commitments made to protect the confidentiality of

sources and to maintain access to necessary sources of information; or

(4) Prevent interference with law enforcement proceedings.

(d) In addition to the foregoing exemptions, the systems of records

described in paragraph (a) of this section which are numbered as

numbers SBA 015, 100, 120, 125 and 130 are fully exempt from the

Privacy Act to the extent that they contain:

(1) Information compiled for the purpose of identifying individual

criminal offenders and alleged offenders and consisting only of

identifying data and notations of arrests, confinement, release, and

parole and probation status;

(2) Information compiled for the purpose of criminal investigation,

including reports of informants and investigators, and associated with

an identifiable individual; or

(3) Reports associated with an identifiable individual compiled at

any stage of the process of enforcement of

[[Page 57978]]

the criminal laws from arrest or indictment through release from

supervision.

(e) The systems of records described in paragraph (d) are fully

exempt from the Privacy Act to the extent described in that paragraph

because they are records maintained by the Investigations Division of

the Inspector General, which is a component of SBA which performs as

its principal function activities pertaining to the enforcement of

criminal laws within the meaning of 5 U.S.C. 552a(j)(2). They are

exempt in order to:

(1) Prevent the subjects of OIG investigations from using the

Privacy Act to frustrate the investigative process;

(2) Protect the identity of Federal employees who furnish a

complaint or information to the OIG, consistent with section 7(b) of

the Inspector General Act of 1978, 5 U.S.C. App. I;

(3) Protect the confidentiality of other sources of information;

(4) Avoid endangering confidential sources and law enforcement

personnel;

(5) Prevent interference with law enforcement proceedings;

(6) Assure access to sources of confidential information, including

that contained in Federal, State, and local criminal law enforcement

information systems;

(7) Prevent the disclosure of investigative techniques; or

(8) Prevent the disclosure of classified information.

Sec. 102.28 Information compiled for civil action.

Nothing in the regulations in the subpart allows an individual

access to any information compiled by the Agency in reasonable

anticipation of a civil action or proceeding. In the event that there

should be a question as to whether information should be disclosed

pursuant to this section, the Systems Manager for the System of Records

involved will obtain an opinion from Agency counsel, and will also

consult with the Privacy Act Officer.

Sec. 102.29 Who administers SBA's responsibilities under the Privacy

Act?

The Privacy Act Officer has overall responsibility for

administering the Privacy Act for SBA, and the Systems Manager is

responsible for administering the Privacy Act as to systems of records

within an SBA Office.

Sec. 102.30 How can I write to the Privacy Act Officer?

You can write to the Privacy Act Officer at 409 Third Street S.W.,

Suite 5900, Washington, D.C. 20416.

Sec. 102.31 Who appoints Systems Managers?

The Senior official in each field office and each Headquarters

program area designates himself or herself or appoints another as the

Systems Manager for that office.

Sec. 102.32 What do Systems Managers do?

Systems Managers have the following responsibilities, among others,

for the offices for which they are appointed:

(a) Acting as the initial contact person to individuals seeking

access or amendment of their records.

(b) Responding to requests for information.

(d) Amending records in cases where amended information is not

controversial and does not involve policy decision making.

(e) Informing individuals of any reproduction fees to be charged.

(f) Assuring that their systems of records contains no record

describing how any individual exercises rights guaranteed by the First

Amendment unless expressly authorized by statute or by the individual

about whom the record is maintained, or unless pertinent to and within

the scope of an authorized law enforcement activity. First Amendment

rights include, but are not limited to, freedom to follow religious and

political beliefs, freedom of speech and of the press, and freedom of

assembly and the right to petition government.

Sec. 102.33 How can I write to a Systems Manager?

You can write to a Systems Manager by writing to the SBA Office

which maintains the record you are seeking. If you do not know which

office that is, or you do not know the address of that office, you can

write to the Privacy Act Officer at 409 3rd Street S.W., Suite 5900,

Washington, D.C. 20416, who will forward your request to the proper

Systems Manager.

Sec. 102.34 How can I see records kept on me?

(a) You may look at any information pertaining to yourself if it is

contained in any SBA system of records, unless some law or regulation

prohibits it.

(b) In order to see this information, you must ask for it in

writing and the writing must identify what records you want. The

writing should be addressed to the Systems Manager overseeing the

system of records.

Officer) may ask for more specific information about the system of

records in which the document you are seeking is kept, and may ask you

for identification. The Systems Manager may ask you for your social

security number but you are not obliged to present it and your request

will not be denied simply because you do not provide it. The Systems

Manager may, however, deny your request if he or she cannot determine

that you are the person about whom the information pertains.

Sec. 102.35 How long will it take SBA to respond to my request?

The Systems Manager will respond within ten working days.

Sec. 102.36 How will SBA respond to my request?

The Systems Manager will inform you that:

(a) Your request is denied, in which case he or she will set forth

the reasons for denial and your rights to appeal; or

(b) Your request is granted and you may view your record, in which

case he or she will set forth the time and date for you to review your

record in the presence of an SBA employee; or

you a copy of your record. SBA will mail you your record only if it

determines that there are no other reasonable means for you to obtain

access to your record.

Sec. 102.37 How may I appeal a decision to deny me access to my

records?

Your appeal should be in writing and should set forth any

information you think would show that you should have access to your

records.

Sec. 102.38 To whom should my appeal be addressed?

(a) Denial of a personnel file. Address an appeal of a denial of a

request for a personnel file to the Office of Personnel Management,

1900 E Street N.W., Washington, D.C. 20006.

(b) Denial of an Equal Employment Opportunity Complaint File.

Address an appeal of a denial of an Equal Employment Opportunity

Complaint File to the Equal Employment Opportunity Commission, 1801 L

Street N.W., Washington, D.C. 20036.

decision to deny you access to any other record. See Sec. 102.30,

above.

Sec. 102.39 When must I appeal to the Privacy Act Officer?

Your appeal must reach the Privacy Act Officer on or before 30

calendar days after the date the denial was issued. If your appeal is

based on the failure of the Systems Manager to

[[Page 57979]]

answer your request, your appeal must reach the Privacy Act Officer on

or before 90 calendar days after the date by which the Systems Manager

should have responded under section 102.35.

Sec. 102.40 When will SBA respond to my appeal?

The Privacy Act Officer will respond to you within 30 working days

of the date when your appeal was received.

Sec. 102.41 How will SBA respond to my appeal?

The Privacy Act Officer will inform you that:

(a) Your request is denied, in which case the reasons for denial

will be set forth along with your rights to judicial review of SBA's

decision; or

(b) Your request is granted and you may view your record, in which

case the time and date for you to review your records in the presence

of an SBA employee will be set forth; or

you a copy of your record. SBA will mail you your record only if it

determines that there are no other reasonable means for you to obtain

access to your record.

Sec. 102.42 How can I get SBA to amend a record kept on me?

You can petition to have records kept on you amended by writing to

the Systems Manager who oversees the system of records in which the

record you wish amended is kept. If you are unable to determine who

that Systems Manager is, you may send your petition to the Privacy Act

Officer, who will forward it to the right Systems Manager. See

Sec. 102.30.

Sec. 102.43 What should my petition say?

Your petition should include the following:

(a) In what system of records the record you want amended is kept.

(b) What record you want amended.

(d) Why you want the record amended.

(e) Any information you have, including copies of evidence, which

you think will persuade the Systems Manager to amend the record.

(f) What the record should say.

Sec. 102.44 For what reasons will SBA amend my record?

SBA will maintain only accurate, complete, and up-to-date records

which are relevant to accomplish some purpose of the Agency required by

law, regulation, or Executive Order of the President. There are four

grounds for amending a record. They are:

(a) The record is not accurate.

(b) The record is not relevant to any legitimate SBA concern.

events since the date of the record which have affected some of the

information contained in the record.

(d) The record is incomplete. There may be relevant information

about the material contained in the record which was not included in

the record.

Sec. 102.45 Will SBA ask me for more information after I make my

request?

The Systems Manager (or, when appropriate, the Privacy Act Officer)

may ask for more specific information about the system of records in

which the document you are seeking is kept, and may ask you for

identification. The Systems Manager may ask you for your social

security number, but you are not obliged to present it and your request

will not be denied simply because you do not provide it. The Systems

Manager may, however, deny your request if he or she cannot determine

that you are the person about whom the information pertains.

Sec. 102.46 When will SBA respond to my request?

The Systems Manager will acknowledge receipt of your request within

10 working days and issue a written response within 30 working days.

Sec. 102.47 How will SBA respond to my request?

The Systems Manager will:

(a) Make the amendment you request, in which case he or she will

send all individuals who had previously received a copy of that record

a copy of the amended record; or

(b) Amend the record, but not in complete accordance with your

request, in which case he or she will send all individuals who had

previously received a copy of that record a copy of the amended record

and will, in addition, tell you why your request was not granted in

full and tell you of your appeal rights; or

you why your request was not granted and tell you of your appeal

rights.

Sec. 102.48 How do I appeal a refusal to amend a record kept on me?

Your appeal should be in writing and include the following:

(a) All of the information contained in your original request to

amend the record.

(b) The response of the Systems Manager, if any, including the

reasons for denying your request, if any.

Manager's findings.

Sec. 102.49 To whom should I address my appeal?

(a) Personnel file. Address your appeal to the Office of Personnel

Management, 1900 E Street NW., Washington, DC 20006.

(b) Equal Employment Opportunity Complaint File. Address your

appeal to the Equal Employment Opportunity Commission, 1801 L Street

NW., Washington, DC 20036.

Officer. See Sec. 102.30.

Sec. 102.50 By when must I submit my appeal?

Your appeal must be received by the Privacy Act Officer within 30

calendar days of the date upon which the Systems Manager declined to

amend your records, or within 90 calendar days of the date upon which

the Systems Manager should have responded to your request under

Sec. 102.46 if the Systems Manager did not so respond.

Sec. 102.51 By what standards will the Privacy Officer review my

appeal?

The Privacy Act Officer will decide your appeal using the criteria

of accuracy, relevance, timeliness, and completeness described in

Sec. 102.44. The Privacy Act Officer will review all relevant

information and may seek the views of other SBA personnel. The Privacy

Act Officer may review information not available to or not used by the

Systems Manager.

Sec. 102.52 When will SBA respond to my appeal?

The Privacy Act Officer will respond to your appeal within 30

working days of the date upon which it is received, unless the

Administrator determines that unusual circumstances exist, in which

case the Privacy Act Officer will notify you of the presence of these

unusual circumstances within 30 working days of the date upon which he

or she received your appeal, and will respond to your appeal within 60

working days of the date of receipt.

Sec. 102.53 How will SBA respond to my appeal?

The Privacy Act Officer will:

(a) Make the amendment you request, in which case he or she will

send all individuals who had previously received a copy of that record

a copy of the amended record; or

[[Page 57980]]

(b) Amend the record, but not in complete accordance with your

request, in which case he or she will

(1) Send all individuals who had previously received a copy of that

record a copy of the amended record, and

(2) Tell you why your request was not granted in full and tell you

of your rights to judicial review, and

(3) Mark the areas of dispute, include your statement of

disagreement in the file, and, if appropriate, include a concise

statement of why the Agency refused to amend the record in accordance

with your request, and send this material to all individuals who had

previously received a copy of that record; or

she will

(1) Tell you why your request was not granted and tell you of your

rights to judicial review, and

(2) Mark the areas of dispute, include your statement of

disagreement in the file, and, if appropriate, include a concise

statement of why the Agency refused to amend the record in accordance

with your request, and send this material to all individuals who had

previously received a copy of that record.

Sec. 102.54 How can I obtain judicial review about an SBA Privacy Act

decision?

You may bring a civil action against SBA in a district court of the

United States whenever the SBA:

(a) Makes a final determination not to provide you with access to

or to amend your record in accordance with your request;

(b) Fails to maintain your records 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 you that may be made on the basis of

such record, and consequently a determination is made which harms you,

U.S.C. 552a) or the implementing regulations in this subpart, in such a

way as to cause harm to you.

Sec. 102.55 What must SBA tell the individuals from whom it collects

information?

When SBA collects information from an individual, it must, either

on the form which collects the information or on a separate form which

the individual may keep, state:

(a) Whether disclosure of the information is voluntary or

mandatory;

(b) By what authority SBA is collecting the information;

information;

(d) What routine uses might be made of that information; and

(e) What will happen if the information isn't supplied.

Sec. 102.56 Will SBA sell my name or address?

SBA will not sell your name or address to anyone. Someone might

acquire it, though, under the Freedom of Information Act (5 U.S.C.

552).

Sec. 102.57 Do I have to give SBA my Social Security Number?

(a) No. You need not give SBA your Social Security Number, even if

SBA asks for it.

(b) If SBA asks you for your Social Security Number, it must also

tell you under what authority it is seeking to know your Social

Security Number, and for what purpose.

it your Social Security Number.

Sec. 102.58 When will SBA show personnel records to a representative?

(a) If you go to where the records are kept, SBA will permit one

person of your choosing to inspect the records with you.

(b) If you want your representative to inspect the records without

you, you must give SBA a written authorization.

you direct SBA to do so in writing.

(d) You may inspect the records of a minor if you present evidence

that you are the custodial parent (including joint custodial parent) or

legal guardian of that minor. An affidavit or declaration, signed by

you under penalty of perjury, is normally sufficient evidence unless

SBA has information to the contrary.

(e) You may inspect the records of an adult incompetent if you

present evidence that you are the legal guardian of that person. A

guardianship order is sufficient evidence of your guardianship. Other

evidence may be considered.

Sec. 102.59 What fees will SBA charge me for my records?

SBA will charge you only for photocopying at the rate of ten cents

per page. SBA will not charge you for finding or reviewing your

records. Fees less than $25 will be waived.

Sec. 102.60 May I be informed of disclosures made of my records?

SBA will tell you what disclosures it made of your records if you

ask us, except that SBA will not tell you about disclosures it made to

another federal agency or government entity for law enforcement

purposes.

Sec. 102.61 Matching Program procedures.

(a) SBA will comply with the Computer Matching and Privacy

Protection Act of 1988. (Public Law 100-503, as amended). This Act

establishes procedures federal agencies must use if they want to match

their computer lists.

(b) If SBA adopts any procedures to supplement its compliance with

the Computer Matching and Privacy Protection Act of 1988 which are not

mandated in that Act, SBA will publish those procedures in Standard

Operating Procedure (SOP) 40 04. You can get a copy of SOP 40 04 at any

SBA Office.

contractor of any Federal Agency, State or Local Government, or agency

of any State or Local Government to disclose records for purposes of a

computer matching program, SBA will make a copy of that agreement

available to the general public. You can get a copy of all such

agreements by writing to the Privacy Act Officer.

PART 137--[REMOVED]

2. Part 137 is removed.

Dated: November 13, 1995.

Philip Lader,

Administrator.

[FR Doc. 95-28446 Filed 11-22-95; 8:45 am]

BILLING CODE 8025-01-P

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.