[Federal Register Volume 61, Number 19 (Monday, January 29, 1996)]
[Rules and Regulations]
[Pages 2671-2679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1159]
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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
[[Page 2672]]
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.
(c) If you send your request to the wrong office, that office will
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;
or
(c) Tell you that you will not receive a response until you have
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.
(c) SBA will disclose upon request business information that has
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.
(c) Member of the general public. If you are a member of the
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.
(c) The Public Index is set forth in Appendix 3 of SBA Standard
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.
(c) If SBA counsel disapproves compliance with the subpoena, SBA
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.
(c) SBA will permit exemptions from the requirements of 5 U.S.C.
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;
(c) When required under 5 U.S.C. 552 (FOIA);
(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).
(c) The systems of records described in paragraph (a) of this
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.
(c) Discussing the availability of records with individuals.
(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.
(c) The Systems Manager (or, when appropriate, the PA 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 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
(c) Your request is granted and, unless you object, SBA will mail
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.
(c) All other appeals. Appeal the denial of any other record to the
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
(c) Your request is granted and, unless you object, SBA will mail
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.
(c) What specific information in that 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.
(c) The record is out-of-date. For example, there may have been
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
(c) Decline to amend the record, explaining why your request was
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
(c) Any information you wish to submit in response to the Systems
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.
(c) All other appeals. Address your appeal to the PA Officer. See
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;
or
(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;
or
(c) Fails to comply with any other provisions of the PA (5 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;
(c) For what principal purpose or purposes SBA is collecting the
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.
(c) SBA cannot withhold a benefit solely because you refuse to tell
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.
(c) SBA will mail a copy of the record to your representative if
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.
(c) If SBA enters into an agreement with any federal agency,
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
