Freedom of Information and Privacy Act of 1974

Federal RegisterJan 29, 1996

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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: Final rule.

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SUMMARY: In response to President Clinton's regulatory directive, the

Small

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Business Administration (SBA) has completed a page-by-page, line-by-

line review of all its regulations. As a result, SBA is clarifying and

streamlining its regulations. This final rule reorganizes Part 102,

which governs SBA's administration of the Freedom of Information and

Privacy Acts, in order to make it clearer and more succinct. It also

eliminates Part 137, governing Classified Information, folding those

sections which apply to SBA into the revised Part 102. It also allows

submitters of business information to identify, at the time of

submission, material they consider confidential; establishes a fee

appeal procedure; eliminates the Program Official from Privacy Act

responsibilities; and makes minor changes in Freedom of Information and

Privacy Act fees.

EFFECTIVE DATE: This rule is effective on February 28, 1996.

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

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

SUPPLEMENTARY INFORMATION: Part 102 of Chapter I, title 13 of the Code

of Federal Regulations sets forth the policies and procedures by which

SBA administers the Freedom of Information Act and the Privacy Act of

1974. Part 137 of that Chapter contains SBA regulations governing

classified information under Executive Order 12356. On November 24,

1995 SBA published a proposed rule in the Federal Register (60 FR

57970) to reorganize Part 102 and to eliminate Part 137, incorporating

those portions of the latter Part which apply to SBA into Part 102. SBA

did not receive any comments in response to the proposed rule. Thus,

SBA is finalizing the rule with only minor technical changes:

(1) Within Secs. 102.6(d) and 102.7, the effective date by which

procedures change for submitters of business information has been

changed from January 1, 1996 to March 1, 1996, so as to occur after the

effective date of the new regulations.

(2) Due to the repeal of Executive Order 12356 and to the

provisions of new Executive Order 12968, which require only agencies

that generate classified materials to regulate their distribution, SBA

has eliminated all direct reference to classified materials in its

regulations.

(3) Section 102.13, governing subpoenas, has been changed to

clarify that the section applies only to lawsuits or other proceedings

to which SBA is not a party, and that the Associate General Counsel for

Litigation may not delegate to local counsel authorization for the

production of documents or testimony of employees from the Inspector

General's Office.

(4) The language of various sections has been streamlined and the

numbering of some paragraphs has been reordered to make the overall

regulations clearer.

A Conversion Table Follows

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Existing part 102 New 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(d)

Sec. 102.4(e)(2)......................... Sec. 102.4(c).

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).

Sec. 102.6(e).

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

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

Sec. 102.6(e).

Sec. 102.5(g)............................ Sec. 102.6(f).

Sec. 102.5(h)............................ Sec. 102.6(g).

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

Sec. 102.6(e).

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. 102.12.

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).

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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. 102.47.

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)

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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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 rule does 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. It makes SBA's FOIA and PA procedures clearer and will

institute governmental efficiencies at no cost to small businesses. It

will not, however, 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 rule contains no new reporting or recordkeeping

requirements.

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

has no 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.

List of Subjects

13 CFR Part 102

Freedom of information, Privacy.

13 CFR Part 137

Classified information.

Accordingly, pursuant to the authority set forth in the Freedom of

Information Act (5 U.S.C. 552); the Privacy Act of 1974 (5 U.S.C.

552a), Executive Order 12600, and Executive Order 12968, SBA amends

chapter I of Title 13 of the Code of Federal Regulations, as follows:

1. Part 102 is revised to read as follows:

PART 102--RECORD DISCLOSURE AND PRIVACY

Subpart A--Disclosure of Information

Sec.

102.1 What does this subpart do?

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 What are the procedures for submitters of business

information to SBA after March 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 subpoena records or testimony of employees

in connection with a civil lawsuit, criminal proceeding or

administrative proceeding to which SBA is not a party?

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 Are there 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 What about information compiled for a 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 By 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 Act 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?

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102.56 Will SBA release my name or address?

102.57 Do I have to give SBA my SSN?

102.58 When will SBA show personnel records to a 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 Are there Matching Program procedures?

Authority: 5 U.S.C. 552 and 552a; 31 U.S.C. 1 et seq. and 67 et

seq.; 44 U.S.C. 3501 et seq.; E.O. 12600, 3 CFR, 1987 Comp., p. 235.

Subpart A--Disclosure of Information

Sec. 102.1 What does this subpart do?

This subpart describes the procedures by which the SBA makes

documents available under the Freedom of Information Act (``FOIA'') (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, FOIA & PA Office,

409 Third Street S.W., 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 10 working days after the correct office receives your

request, unless you have requested an especially large number of

records, the records are not located in the office handling the

request, or SBA needs to consult with another government office.

(b) If you make your request on behalf of another person, SBA will

respond within 10 working days after you present a document signed by

that person authorizing you to request information on his or her

behalf. If you make your request on behalf of another person without

including such signed authorization, SBA will inform you of the

authorization needed.

send it to the correct office within 10 working days and will send you

an acknowledgment letter.

(d) If SBA determines that one of the circumstances described in

paragraph (a) of this section apply, it will respond within 20 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 all 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.

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

(a) Business information is a trade secret, or commercial or

financial information, contained in records provided to SBA by any

person and which may be protected from disclosure under Exemption Four

of FOIA (5 U.S.C. 552(b)(4)).

(b) 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.

previously been released to the general public.

(d) If you request business information submitted to SBA prior to

March 1, 1996 which has not previously been released to the general

public, SBA will notify the submitter of your request upon SBA's

receipt of it if SBA intends to release that information. SBA will give

the submitter 5 working days to identify information the disclosure of

which would likely cause substantial competitive harm and why that harm

would occur unless SBA intends to deny your request in full.

(e) If you request business information submitted to SBA after

March 1, 1996 which has not previously been released to the general

public, SBA will notify the submitter if it intends to release business

information which either the submitter has previously claimed or which

SBA believes to be confidential and the disclosure of which would cause

substantial competitive harm. The submitter will have 5 working days to

object to the disclosure, explaining why the harm would occur.

(f) Whenever a submitter objects to disclosure, SBA will consider

the submitter's objections, but will not be bound by it. If SBA

discloses information despite a submitter's objection, SBA will give

the submitter the maximum notice possible before disclosure without

violating the time constraints imposed by FOIA. In this notice, SBA

will tell the submitter when and what it intends to disclose.

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

against SBA to compel disclosure.

Sec. 102.7 What are the procedures for submitters of business

information to SBA after March 1, 1996?

Submitters may identify business information at the time of

submission which would likely cause them substantial competitive harm

if disclosed. The identification shall lapse after 10 years, unless

renewed in writing.

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 10 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

[[Page 2675]]

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 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? SBA will bill you when it responds to

your request. You must pay within thirty-one calendar days.

(l) Failure to pay fees. (1) If you do not pay by the thirty-first

day after the billing date, SBA will charge interest at the maximum

rate allowed under Title 31 of the United States Code, section 3717.

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

the due date, SBA may notify consumer credit reporting agencies of your

delinquency.

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

respond to further requests unless you satisfy the amount due.

(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 or about

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 100 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, FOIA & PA Office at 409 Third

Street S.W., Suite 5900, Washington, D.C. 20416.

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

days of the date of the SBA 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 who denied 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) The Chief will decide your appeal, unless the Chief originally

made the determination you are appealing. In that case, SBA's Assistant

Administrator for Hearings and Appeals will decide your appeal.

(e) SBA will decide your appeal within 20 working days from the

date of its receipt. SBA may have an additional 10 working days if

unusual circumstances require.

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

records, SBA will 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

FOIA, and tell you how to obtain judicial review of SBA's decision.

(2) If you are appealing a fee determination, SBA will 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 FOIA, that

periodic publication and distribution is unnecessary and impracticable.

Operating Procedure 40 03. You can obtain the Public Index from 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

[[Page 2676]]

Sec. 102.3(c). SBA will forward your request to the generating agency.

Sec. 102.12 What happens if I subpoena records or testimony of

employees in connection with a civil lawsuit, criminal proceeding or

administrative proceeding to which SBA is not a party?

(a) The person to whom the subpoena is directed must consult with

SBA counsel in the relevant SBA office, who will seek approval for

compliance from the Associate General Counsel for Litigation. Except

where the subpoena requires the testimony of an employee of the

Inspector General's office, or records within the possession of the

Inspector General, the Associate General Counsel may delegate the

authorization for appropriate production of documents or testimony to

local SBA counsel.

(b) If SBA counsel approves 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) SBA counsel must provide a copy of any subpoena relating to a

criminal matter to SBA's Inspector General prior to its return date.

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 SBA;

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

particular 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) (``PA'') only where an important public

policy need for such exemption has been determined pursuant to or under

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 required of SBA 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 SBA employees 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 PA Officer specifying the particular portion desired and

the law enforcement activity for which the record is sought;

(i) To a person showing compelling circumstances affecting the

health or safety of an individual. Upon disclosure, SBA will notify

such individual at his or her last known address;

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

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 31 U.S.C.

3711(f).

Sec. 102.23 Are there special rules about personnel and equal

employment opportunity files?

(a) The provisions of parts 293 and 297 of Title 5 of the Code of

Federal Regulations govern all SBA files which the Office of Personnel

Management determines are personnel files.

(b) The provisions of part 1611 of Title 29 of the Code of Federal

Regulations govern all Equal Employment Opportunity complaint files.

Sec. 102.24 What is a record?

A record is information which SBA maintains on an individual and

which includes either his name or an identifying symbol (such as a

fingerprint, a social security number (``SSN''), or a photograph.

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 PA: Audit Reports (system of records #SBA 015),

Litigation and Claims Files (#SBA 070), Personnel

[[Page 2677]]

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 PA 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).

section are exempt from the provisions of the Privacy Act described in

paragraph (b) of this section 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 in paragraphs (a)

through (c) of this section, the systems of records described in

paragraph (a) of this section numbered SBA 015, 100, 120, 125 and 130

are fully exempt from the Privacy Act to the extent that they contain:

(1) Information compiled to identify 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, including reports of informants and investigators,

associated with an identifiable individual compiled to investigate

criminal activity; or

(3) Reports compiled at any stage of the process of enforcement of

the criminal laws from arrest or indictment through release from

supervision associated with an identifiable individual.

(e) The systems of records described in paragraph (d) of this

section are fully exempt from the PA 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 Office of

Inspector General (OIG) investigations from using the PA 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 What about information compiled for a civil action?

No individual shall have access to any information compiled by SBA

in reasonable anticipation of a civil action or proceeding. In the

event of a question as to disclosure, the Systems Manager for the

system of records involved will rely on the opinion of the General

Counsel or designee, and will also consult with the PA Officer.

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

Act?

The PA Officer has overall responsibility for administering the PA

for SBA. A Systems Manager is responsible for administering the PA 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 PA 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 for individuals seeking

access to 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 decisionmaking.

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

(f) Assuring that their systems of records contain 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.

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 PA Officer at 409 3rd Street SW., 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

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, identifying what records you want. The writing should be

addressed to the Systems Manager overseeing the system of records

containing the record you wish to see.

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 to whom the information pertains.

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

The Systems Manager will respond within 10 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

[[Page 2678]]

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 a request for an Equal Employment

Opportunity Complaint File to the Equal Employment Opportunity

Commission, 1801 L Street N.W., Washington, D.C. 20036.

PA Officer. See Sec. 102.30.

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

Your appeal must reach the PA 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 answer your request, your appeal must

reach the PA Officer on or before 90 calendar days after the date by

which the Systems Manager should have responded under Sec. 102.35.

Sec. 102.40 When will SBA respond to my appeal?

The PA 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 PA 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 PA 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 seeks to maintain only accurate, complete, and up-to-date

records which are relevant to accomplish some purpose 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 additional information

relevant to the material contained in the record.

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

request?

Perhaps, in which case the procedures of Sec. 102.34(c) shall

apply.

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, and send all individuals who

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

record; or

(b) Amend the record, in a different manner, sending all

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

the amended record and, in addition, telling you why your request was

not granted in full and what appeal rights you have; or

not granted and telling 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) Any response of the Systems Manager, including any reasons for

denying your request; and

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.

Sec. 102.30.

Sec. 102.50 By when must I submit my appeal?

Your appeal must be received by the PA Officer within 30 calendar

days of the date the Systems Manager declined to amend your records, or

within 90 calendar days of the date the Systems Manager should have

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

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

appeal?

The PA Officer will decide your appeal using the criteria of

accuracy, relevance, timeliness, and completeness described in

Sec. 102.44. The PA Officer will review all relevant information and

may seek the views of other SBA personnel. The PA 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 PA Officer will respond to your appeal within 30 working days

of its

[[Page 2679]]

receipt, unless the Administrator determines that unusual circumstances

exist, in which case the PA 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 PA Officer will:

(a) Make the amendment you request, sending all individuals who had

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

(b) Amend the record in a different manner; or decline to amend it

at all:

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

that record a copy of the amended record;

(2) Telling you why your request was not granted in full and that

you can seek judicial review; and

(3) Marking the areas of dispute, including your statement of

disagreement in the file, and, if appropriate, a concise statement of

why SBA refused to amend the record as you requested, sending this

material to all individuals who had previously received a copy of that

record.

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

decision?

You may bring a civil action against SBA in a United States

district court if 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,

opportunities of, or benefits to you that may be made on the basis of

such records, and consequently a determination is made which harms you;

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 release my name or address?

No, unless compelled to by law.

Sec. 102.57 Do I have to give SBA my SSN?

(a) No. You need not give SBA your SSN, even if SBA asks for it.

(b) If SBA asks you for your SSN, it must tell you under what

authority it seeks your SSN, and for what purpose.

it your SSN.

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 10 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, 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 Are there Matching Program procedures?

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

Protection Act of 1988 (5 U.S.C. 552a, 552a notes). 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 any such

agreement by writing to the Privacy Act Officer.

PART 137--[REMOVED]

2. Part 137 is removed.

Dated: January 19, 1996.

Philip Lader,

Administrator.

[FR Doc. 96-1159 Filed 1-26-96; 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.