[Federal Register Volume 60, Number 226 (Friday, November 24, 1995)]
[Proposed Rules]
[Pages 57970-57980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28446]
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SMALL BUSINESS ADMINISTRATION
13 CFR Parts 102 and 137
Freedom of Information and Privacy Act of 1974
AGENCY: Small Business Administration.
ACTION: Proposed rule.
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SUMMARY: In response to President Clinton's government-wide regulatory
reform initiative, the Small Business Administration (SBA) has
completed a page-by-page, line-by-line review of all of its existing
regulations to determine which might be revised or eliminated. This
proposed rule would delete duplicative statutory and unnecessary
language and rewrite the remainder in plain English. There are some
substantive changes, as follows:
The proposed rule revises the Agency's regulations implementing
Executive Order 12600 and would require SBA to give submitters of
information the opportunity, at the time they submit the information,
to identify information the disclosure of which would cause them
substantial competitive harm.
The rule would establish a procedure for appealing FOIA fee
determinations which parallels the procedure for appealing a decision
to withhold information.
[[Page 57971]]
The rule would remove the Program Official from the Privacy Act
management function and vest all responsibilities in Systems Managers
and the Privacy Act Officer.
Part 137 deals with the treatment of classified information. Since
SBA generates no such documents, SBA regulations need deal only with
classified information which SBA acquires from other Agencies. The rule
would place the needed portion of Part 137 in Part 102 and eliminate
the remainder.
There are other, minor changes detailed below.
DATES: Comments must be submitted on or before December 26, 1995.
ADDRESSES: Written comments should be addressed to David R. Kohler,
Regulatory Reform Team Leader, (102), Small Business Administration,
409 3rd Street SW., Suite 13, Washington, D.C. 20416.
FOR FURTHER INFORMATION CONTACT: Timothy C. Treanor, Attorney Advisor,
Office of General Counsel, at (202) 205-6885.
SUPPLEMENTARY INFORMATION: On March 4, 1995, President Clinton issued a
Memorandum to all federal agencies, directing them to simplify their
regulations. In response to this directive, SBA has completed a page-
by-page, line-by-line review of all of its existing regulations to
determine which might be revised or eliminated.
SBA reorganized and simplified Part 102. A conversion table of
distribution follows:
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Present part 102 Proposed part 102
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Sec. 102.1(a)............................ Sec. 102.1
Sec. 102.1(b)............................ deleted
Sec. 102.2............................... deleted
Sec. 102.3(a)............................ deleted
Sec. 102.3(b)............................ deleted
Sec. 102.3(c)............................ deleted
Sec. 102.3(d)............................ deleted
Sec. 102.3(e)............................ deleted
Sec. 102.3(f)............................ deleted
Sec. 102.3(g)............................ deleted
Sec. 102.3(h)............................ deleted
Sec. 102.3(i)............................ deleted
Sec. 102.3(j)............................ deleted
Sec. 102.3(k)............................ deleted
Sec. 102.3(l)............................ Sec. 102.10
Sec. 102.4(a)............................ deleted
Sec. 102.4(b)............................ Sec. 102.2(a)
Sec. 102.4(c)............................ Sec. 102.2(b)
Sec. 102.4(d)............................ deleted
Sec. 102.4(e)(1)......................... Sec. 102.3(a)
Sec. 102.3(c)
Sec. 102.4(e)(2)......................... Sec. 102.4(b)
Sec. 102.4(e)(3)......................... Sec. 102.5
Sec. 102.5(a)............................ deleted
Sec. 102.5(b)(1)......................... Sec. 102.6(a)
Sec. 102.5(b)(2)......................... deleted
Sec. 102.5(b)(3)......................... Sec. 102.6(b)
Sec. 102.5(c)............................ deleted
Sec. 102.5(d)............................ Sec. 102.6(a)
Sec. 102.6(d)(1)(i)
Sec. 102.6(d)(2)(i)
Sec. 102.5(e)............................ Sec. 102.7
Sec. 102.5(f)............................ Sec. 102.6(d)(1)(ii)
Sec. 102.6(d)(2)(ii)
Sec. 102.5(g)............................ Sec. 102.6(d)(4)
Sec. 102.5(h)............................ Sec. 102.6(f)
Sec. 102.5(i)(1)......................... Sec. 102.6(d)(1)(i)
Sec. 102.6(d)(2)(i)
Sec. 102.5(i)(2)......................... Sec. 102.6(c)
Sec. 102.5(i)(3)......................... deleted
Sec. 102.5(i)(4)......................... deleted
Sec. 102.6(a)............................ deleted
Sec. 102.6(b)............................ Sec. 102.9(b)
Sec. 102.6(c)............................ Sec. 102.9(c)(1)
Sec. 102.6(d)............................ Sec. 102.9(a)
Sec. 102.6(e)(1)......................... Sec. 102.9(d)
Sec. 102.6(e)(2)......................... Sec. 102.9(f)(1)
Sec. 102.6(e)(3)......................... Sec. 102.9(e)
Sec. 102.7(a)(1)......................... deleted
Sec. 102.7(a)(2)......................... deleted
Sec. 102.7(a)(3)......................... deleted
Sec. 102.7(a)(4)......................... deleted
Sec. 102.7(a)(5)......................... Sec. 102.8(d)
Sec. 102.7(a)(6)......................... Sec. 102.8(b)(1)
Sec. 102.7(a)(7)......................... Sec. 102.8(b)(2)
Sec. 102.7(a)(8)......................... Sec. 102.8(b)(4)
Sec. 102.7(b)(1)......................... Sec. 102.8(a)(1)
Sec. 102.7(b)(2)......................... Sec. 102.8(a)(2)
Sec. 102.7(b)(3)......................... Sec. 102.8(a)(3)
Sec. 102.7(b)(4)......................... Sec. 102.8(a)(4)
Sec. 102.7(b)(5)(i)...................... Sec. 102.8(a)(5)
Sec. 102.7(b)(5)(ii)..................... Sec. 102.8(a)(6)
Sec. 102.7(b)(6)......................... Sec. 102.8(b)(uosp)
Sec. 102.8(c)
Sec. 102.8(e)
Sec. 102.8(h)
Sec. 102.7(b)(7)......................... Sec. 102.8(g)
Sec. 102.7(c)(1)......................... Sec. 102.8(d)
Sec. 102.7(c)(2)......................... Sec. 102.8(b)(uosp)
Sec. 102.8(b) (1-3)
Sec. 102.7(c)(3)......................... Sec. 102.8(b)(uosp)
Sec. 102.8(b)(4)
Sec. 102.7(c)(4)......................... Sec. 102.8(c)
Sec. 102.7(d)(1)......................... Sec. 102.8(l)(1)
Sec. 102.7(d)(2)......................... Sec. 102.8(m)
Sec. 102.7(d)(3)......................... Sec. 102.8(n)
Sec. 102.7(d)(4)(i)...................... Sec. 102.8(i)
Sec. 102.7(d)(4)(ii)..................... Sec. 102.8(i)
Sec. 102.7(d)(4)(iii).................... Sec. 102.3(c)
Sec. 102.7(d)(5)......................... deleted
Sec. 102.7(e)............................ Sec. 102.8(o)
Sec. 102.8............................... Sec. 102.13
Sec. 102.20(a)........................... Sec. 102.20(a)(1)
Sec. 102.20(b)........................... Sec. 102.20(a)(2)
Sec. 102.20(c)........................... Sec. 102.20(a)(3)
Sec. 102.20(d)........................... Sec. 102.20(b)
Sec. 102.20(e)........................... Sec. 102.20(c)
Sec. 102.21(a)........................... deleted
Sec. 102.21(b)........................... deleted
Sec. 102.21(c)........................... Sec. 102.26
Sec. 102.21(d)........................... deleted
Sec. 102.21(e)........................... Sec. 102.24
Sec. 102.21(f)........................... Sec. 102.25
Sec. 102.21(g)........................... deleted
Sec. 102.21(h)........................... deleted
Sec. 102.22(a)(1)........................ Sec. 102.32(b)
Sec. 102.22(a)(2)........................ Sec. 102.32(c)
Sec. 102.22(a)(3)........................ Sec. 102.32(d)
Sec. 102.22(a)(4)........................ Sec. 102.32(e)
Sec. 102.22(a)(5)........................ deleted
Sec. 102.22(a)(6)........................ deleted
Sec. 102.22(a)(7)........................ deleted
Sec. 102.22(b)(1)........................ Sec. 102.32(a)
Sec. 102.22(b)(2)........................ deleted
Sec. 102.22(b)(3)........................ deleted
Sec. 102.22(b)(4)........................ deleted
Sec. 102.22(b)(5)........................ deleted
Sec. 102.22(c)........................... deleted
Sec. 102.22(d)........................... Sec. 102.29
Sec. 102.23UOP........................... Sec. 102.22(a)
Sec. 102.23(a)........................... Sec. 102.22(b)
Sec. 102.23(b)........................... Sec. 102.22(c)
Sec. 102.23(c)........................... Sec. 102.22(d)
Sec. 102.23(d)........................... Sec. 102.22(e)
Sec. 102.23(e)........................... Sec. 102.22(f)
Sec. 102.23(f)........................... Sec. 102.22(g)
Sec. 102.23(g)........................... Sec. 102.22(h)
Sec. 102.23(h)........................... Sec. 102.22(i)
Sec. 102.23(i)........................... Sec. 102.22(j)
Sec. 102.23(j)........................... Sec. 102.22(k)
Sec. 102.23(k)........................... Sec. 102.22(l)
Sec. 102.24.............................. Sec. 102.28
Sec. 102.25.............................. deleted
Sec. 102.26(a)........................... deleted
Sec. 102.26(b)(UOP)...................... deleted
Sec. 102.26(b)(1)........................ deleted
Sec. 102.26(b)(2)........................ deleted
Sec. 102.26(b)(3)........................ Sec. 102.60
Sec. 102.26(b)(4)........................ Sec. 102.47(a)
Sec. 102.47(b)
Sec. 102.26(c)........................... deleted
Sec. 102.27(a)........................... Sec. 102.61(a)
Sec. 102.27(b)(UOP)...................... Sec. 102.61(b)
Sec. 102.27(b)(1)........................ Sec. 102.61(a)
Sec. 102.27(b)(2)........................ Sec. 102.61(a)
Sec. 102.27(b)(3)........................ Sec. 102.61(a)
Sec. 102.27(c)........................... Sec. 102.61(a)
Sec. 102.27(d)........................... Sec. 102.61(a)
Sec. 102.27(e)........................... Sec. 102.61(a)
Sec. 102.27(f)........................... Sec. 102.61(a)
Sec. 102.27(g)........................... Sec. 102.61(a)
Sec. 102.28(a)........................... Sec. 102.34(a)
Sec. 102.58
Sec. 102.28(b)........................... Sec. 102.34(b)
Sec. 102.28(c)........................... Sec. 102.34(c)
Sec. 102.28(d)........................... Sec. 102.36(b)
Sec. 102.28(e)........................... Sec. 102.35
Sec. 102.36
Sec. 102.29(a)........................... Sec. 102.38(c)
Sec. 102.29(a)........................... Sec. 102.39
Sec. 102.29(b)........................... Sec. 102.41
Sec. 102.29(c)........................... Sec. 102.40
Sec. 102.29(d)........................... deleted
Sec. 102.30(a)........................... Sec. 102.42
Sec. 102.30(b)........................... Sec. 102.43
Sec. 102.46
Sec. 102.30(b)........................... Sec. 102.47
Sec. 102.30(c)........................... deleted
Sec. 102.30(d)........................... Sec. 102.47(a)
Sec. 102.47(b)
Sec. 102.31(a)........................... Sec. 102.48
Sec. 102.49(c)
Sec. 102.50
Sec. 102.31(b)........................... Sec. 102.51
Sec. 102.31(c)........................... Sec. 102.52
Sec. 102.31(d)........................... Sec. 102.52
Sec. 102.31(e)........................... Sec. 102.53(b)(1)
Sec. 102.53(c)(2)
Sec. 102.31(f)........................... Sec. 102.58(b)(3)
Sec. 102.58(c)(2)
Sec. 102.32(a)(1)........................ Sec. 102.21(a)
Sec. 102.32(a)(2)........................ Sec. 102.21(b)
Sec. 102.32(a)(3)........................ Sec. 102.55
Sec. 102.32(a)(4)........................ deleted
Sec. 102.32(b)........................... deleted
Sec. 102.32(c)........................... Sec. 102.32(f)
[[Page 57972]]
Sec. 102.33(a)........................... Sec. 102.23(a)
Sec. 102.33(b)........................... deleted
Sec. 102.33(c)........................... Sec. 102.56
Sec. 102.33(d)........................... deleted
Sec. 102.33(e)........................... Sec. 102.57
Sec. 102.33(f)........................... Sec. 102.58
Sec. 102.33(g)........................... Sec. 102.58(d)
Sec. 102.58(e)
Sec. 102.33(h)........................... deleted
Sec. 102.34.............................. Sec. 102.59
Sec. 102.35(a)........................... Sec. 102.27(d)(uosp)
Sec. 102.35(b)........................... Sec. 102.27(d) (1-3)
Sec. 102.35(c)........................... Sec. 102.27(e)
Sec. 102.36(a)........................... Sec. 102.27(a)
Sec. 102.36(b)........................... Sec. 102.27(b)
Sec. 102.36(c)........................... Sec. 102.27(c)
Sec. 102.37.............................. Sec. 102.54
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The principal substantive changes are as follows: (1) Changes in
Implementation of Executive Order 12600. Under the present regulations,
when someone requests business information even arguably exempt under 5
U.S.C. Sec. 552(b)(4), SBA notifies the submitter and allows five
working days to identify information the disclosure of which would
cause substantial competitive harm. If SBA decides that it must
disclose such information anyway, SBA must give the submitter an
additional five working days to respond. The operation of this
regulation makes it difficult for SBA to respond to FOIA requests
within the statutory ten working day limit. To facilitate FOIA's ten
working day requirement, SBA proposes to ask the submitter to identify
this confidential information at the time of submission, and that the
Agency thereafter would notify the submitter only if it intended to
disclose information previously identified as confidential, or other
information the release of which the Agency believed would cause
substantial competitive harm. This proposed regulation would also
provide that where SBA decided to release information the disclosure of
which the submitter sought to prevent, SBA would give the submitter the
``maximum notice possible before disclosure without violating the time
constraints imposed by the Freedom of Information Act'' rather than
five working days. SBA proposes this change so that the Agency can
assure that its responses to FOIA requests remain within the ten
working day time limits imposed by the Freedom of Information Act
itself.
(2) Adoption of an Appeals Process for Fee Determinations. This
rule would establish a quick and simple appeal procedure for requesters
who are dissatisfied with the fee SBA has charged for their FOIA
requests. The procedure parallels the process by which requesters may
appeal SBA decisions to withhold information. Interest would begin to
accrue 31 days after SBA's response to the request, regardless of a fee
appeal.
(3) Elimination of Program Official from Privacy Act Regulations.
Under current Privacy Act regulations, Systems Managers function as the
primary liaison with Privacy Act requesters, conveying requests to
Program Officials and responses to the requesters. SBA has decided to
streamline by empowering Systems Managers to assume the Program
Official's responsibilities directly. Under the new rule, requesters
will direct their requests to Systems Managers, who will make initial
decisions as to access and amendment.
(4) Elimination of Part 137. SBA enacted Part 137 in 1984 in
response to Executive Order 12356, which required Agencies to have
regulations dealing with their handling of classified material. Since
SBA has no classification authority, SBA has decided to repeal that
portion of the existing regulation, maintaining only a provision
(Sec. 102.12) which refers requests for any classified material in
SBA's possession back to their originating agencies.
SBA also proposes some minor changes proposed to its fee structure.
SBA currently waives fees less than $15; the proposed regulations would
waive fees less than $25. SBA currently charges $18 an hour for
professional record searches and $9 for clerical searches. Since SBA
generally does not use clerical personnel to perform manual searches,
and computer searches are billed separately, at cost, the proposed
regulations eliminate the reference to clerical searches and bill all
searches at $18 an hour.
Section By Section Analysis
Proposed Sec. 102.1 describes the purpose of Subpart A: to describe
SBA's compliance with the Freedom of Information Act.
Proposed Sec. 102.2 describes what documents requesters can obtain
by going to offices and what documents requesters must obtain through
writing. Proposed Sec. 102.2 directs the requester to the nearest
District Office or to the Agency's FOIA office; either will forward the
request to the proper office.
Proposed Sec. 102.3 describes how long SBA may take to respond to a
FOIA request. Paragraphs (a) and (c) set forth the statutory
requirements and (with respect to the fee portion) OMB requirements for
all Agencies (See 52 FR 10012). Paragraph (b), which provides that the
clock does not begin to run until the proper office receives the
request, replicates the present regulation.
Proposed Sec. 102.4 describes possible responses to a FOIA request,
including notices of appeal rights. Proposed Sec. 102.5 makes it clear
that SBA will supply only that information that is in the office as of
the close of the day upon which the office receives the request. None
of these proposed sections vary from the current regulations.
Proposed Secs. 102.6 and 102.8 describe SBA's compliance with
Executive Order 12600. Businesses submitting information after January
1, 1996 can designate items whose disclosure would cause them
substantial competitive harm. If SBA proposes to release information so
designated, or other information which SBA believes could cause such
harm, SBA will give notice to the submitter and allow five business
days to submit reasons why SBA should not release the information. If
SBA decides to release the information over the submitter's objections,
SBA then will give the submitter as much additional notice as feasible
consistent with SBA's responsibilities under the Freedom of Information
Act. With respect to information submitted prior to January 1, 1996,
SBA's procedure will remain the same as it is now, except that the
notice SBA gives in the event that it intends to release information
over the submitter's objection will now be the maximum notice
consistent with the Agency's obligations under FOIA, rather than five
working days.
Proposed Sec. 102.8 sets forth a fee schedule which, with two minor
exceptions, remains the same: (1) A waiver of fees under $25, instead
of the present regulation's $15; (2) A charge of $18 per hour for
manual searches rather than $9 per hour for clerical searches and $18
per hour for professional searches. At SBA, professionals typically
conduct manual searches. Computer searches are billed at SBA's actual
cost and handled separately in the regulations. By setting all search
fees at $18 per hour, SBA can simplify recordkeeping. The new
regulation also codifies the present practice of charging the actual
cost of certifying records and sending records (at the request of the
FOIA requester) by other than first class mail. The remainder of the
proposed regulation simply restates the current regulation.
Proposed Sec. 102.9 sets forth a proposed appeal system for both
denial of records and for fees which parallels the current system for
appealing SBA decisions to withhold information.
[[Page 57973]]
Proposed Sec. 102.10 matches the present regulations concerning the
Public Index.
Proposed Sec. 102.11 notes that if the requester asks for a
document generated by another Agency, SBA will forward it to the Agency
which generated the document. This process implements policy guidance
which the Department of Justice has given Agencies on this issue.
Proposed Sec. 102.12 deals with a particular sort of document
generated from another Agency: classified documents. This section is
all that remains of present Part 137. SBA had previously issued that
Part to establish the system by which SBA would manage classified
documents, as required by Executive Order 12356. However, SBA does not
generate classified documents and has neither classification nor
declassification authority. Accordingly, any classified documents in
SBA's possession were generated by another Agency. SBA will refer any
request for such a document to the generating Agency, just as it does
with all documents generated by another Agency.
Proposed Sec. 102.13 matches the present regulations concerning
compulsory process against SBA, except that the Associate General
Counsel for Litigation may under the proposed regulation delegate
authority to resist a subpoena to field counsel.
SBA has substantially reorganized Subpart B, but without
significant substantive changes. Proposed Sec. 102.20 describes the
purpose of the Privacy Act subpart. Proposed Sec. 102.21 sets forth the
basic principles of privacy maintenance. Proposed Sec. 102.22 describes
the circumstances, unchanged from the present, under which SBA will
disclose records. In proposed Sec. 102.23, SBA notes that personnel
files are not governed by Part 102 but rather by 5 CFR Parts 293 and
297. It also notes that EEO Complaint files are governed by 29 CFR Part
1611. This is the state of the law; the proposed regulation corrects
anachronistic references in present Part 102. Proposed Secs. 102.24,
102.25, and 102.26 provide definitions for terms used in the
regulations. Proposed Sec. 102.27 describes records which are exempt
from the Privacy Act under certain circumstances, or which are exempt
on a regular basis from certain provisions of the Privacy Act for all
purposes. This section replicates present Secs. 102.35 and 102.36, with
the single exception that the new regulation does not exempt EEO
Complaint files, Litigation and Claims files, Standards of Conduct
files, and Civil Rights Compliance files from the full range of Privacy
Act provisions since they are not records maintained by the Inspector
General. Proposed Sec. 102.28 makes it clear that the Privacy Act does
not give individuals access to records compiled for civil litigation.
Proposed Secs. 102.29 through 102.33 establish the responsibilities
of SBA employees who administer the Privacy Act. With one important
exception, these responsibilities remain the same. The present
regulations divide Privacy Act responsibilities among the Privacy Act
Officer, the Program Official for each program or office, and the
Systems Manager for each program or office. The new regulations
eliminate Program Officials from Privacy Act responsibilities and
allocate most of their responsibilities to the Systems Managers. This
will free Program Officials to discharge their other substantive SBA
duties.
Proposed Secs. 102.34-102.41 provide instructions for a person who
has records in an SBA system of records and who wants to look at those
records. Proposed Secs. 102.42-102.53 provide instructions for a person
who wishes to have his SBA record amended. Proposed Sec. 102.54 governs
judicial review. None of these sections reflect any substantive changes
from the present regulations.
Proposed Secs. 102.55 through 102.60 group together miscellaneous
commonly-asked Privacy Act questions which the regulations currently
treat in disparate sections of Part 102. These proposed regulations do
not enact any substantive changes in the answers to those questions,
except that (1) SBA will no longer provide a first copy of files
requested under the Privacy Act for free, (2) SBA will waive fees under
$25 (instead of the current $15) for Privacy Act requests and, (3)
noncustodial parents will not be allowed to obtain their children's
records under the Privacy Act.
SBA's current regulations regarding the Computer Matching and
Privacy Protection Act of 1988 are moved to Sec. 102.61. Under the
proposed regulation, the statutory provisions are incorporated by
reference rather than separately set out.
The proposed regulations eliminate references to various
recordkeeping and reporting requirements which have been mandated by
statute; since the statute imposes those requirements on SBA it would
be superfluous to restate them in regulations.
These proposed regulations eliminate many existing provisions of
Part 102 either because they are duplicative or because they set forth
in regulation provisions which are better governed by internal Agency
guidance. For example, the proposed regulations do not detail the
recordkeeping obligations of the Privacy Act Officer. This does not
mean, of course, that SBA will not comply with the recordkeeping
requirements of the Privacy Act. It simply indicates that it will be an
Agency decision, not subject to the provisions of the Administrative
Procedures Act, as to which of its employees discharges which of the
recordkeeping responsibilities.
The elimination of an existing provision is not--except as noted
above--meant to change substantive procedures. For example, the
proposed regulations would eliminate those provisions of present
Sec. 102.3 which set forth what documents the SBA would routinely make
available and what documents the SBA routinely withholds. This does not
signal a change in SBA policy on withholding. SBA will continue to
provide all required documents, along with such additional documents as
it considers appropriate, but SBA sees no reason to give this
unexceptional policy the weight of regulation.
Compliance With Executive Orders 12612, 12778, and 12866, the
Regulatory Flexibility Act (5 U.S.C. 601, et seq.), and the Paperwork
Reduction Act (44 U.S.C. Ch. 35)
SBA certifies that this proposed rule would not have a significant
economic impact on a substantial number of small entities within the
meaning of Executive Order 12866 or the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. This proposed regulation would merely make the
Agency's FOIA and PA procedures clearer. It will institute governmental
efficiencies at no cost to small businesses. Therefore, it is not
likely to have an annual economic effect of $100 million or more,
result in a major increase in costs or prices, or have a significant
adverse effect on competition or the United States economy.
For purposes of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA
certifies that this proposed rule, if adopted in final form, would
contain no new reporting or record keeping requirements.
For purposes of Executive Order 12612, SBA certifies that this rule
would not have any federalism implications warranting the preparation
of a Federalism Assessment.
For purposes of Executive Order 12778, SBA certifies that this rule
is drafted, to the extent practicable, in accordance with the standards
set forth in Section 2 of that Order.
[[Page 57974]]
List of Subjects
13 CFR Part 102
Freedom of information, Privacy.
13 CFR Part 137
Classified information.
For the reasons set forth above, SBA hereby proposes to amend Title
13 of the Code of Federal Regulations, as follows:
1. Part 102 would be revised to read as follows:
PART 102--RECORD DISCLOSURE AND PRIVACY
Subpart A--Disclosure of Information
Sec.
102.1 Purpose.
102.2 How can I get records from SBA?
102.3 How long will it take for SBA to respond to my request for
records?
102.4 How will SBA respond to my request?
102.5 If SBA grants my request, which records will be supplied?
102.6 How will SBA respond to requests for business information?
102.7 Procedures for submitters of business information to SBA
after January 1, 1996.
102.8 What fees will SBA charge?
102.9 How may I appeal a denial of my request for information or a
fee determination?
102.10 How can I get the Public Index of SBA materials?
102.11 What happens if I ask SBA for a record that another Federal
Agency generated?
102.12 What happens if I ask for classified records?
102.13 What happens if I subpoena records or testimony of employees
in connection with a civil lawsuit, criminal proceeding, or
administrative proceeding?
Subpart B--The Privacy Act
102.20 What privacy rights does this subpart regulate?
102.21 How will SBA maintain records?
102.22 When will SBA disclose records?
102.23 Special rules about personnel and equal employment
opportunity files.
102.24 What is a record?
102.25 What is a system of records?
102.26 What does this subpart mean by ``person to whom a record
pertains'' or ``you''?
102.27 What records are partially exempt from the provisions of the
Privacy Act?
102.28 Information compiled for civil action.
102.29 Who administers SBA's responsibilities under the Privacy
Act?
102.30 How can I write to the Privacy Act Officer?
102.31 Who appoints Systems Managers?
102.32 What do Systems Managers do?
102.33 How can I write to a Systems Manager?
102.34 How can I see records kept on me?
102.35 How long will it take SBA to respond to my request?
102.36 How will SBA respond to my request?
102.37 How may I appeal a decision to deny me access to my records?
102.38 To whom should my appeal be addressed?
102.39 When must I appeal to the Privacy Act Officer?
102.40 When will SBA respond to my appeal?
102.41 How will SBA respond to my appeal?
102.42 How can I get SBA to amend a record kept on me?
102.43 What should my petition say?
102.44 For what reasons will SBA amend my record?
102.45 Will SBA ask me for more information after I make my
request?
102.46 When will SBA respond to my request?
102.47 How will SBA respond to my request?
102.48 How do I appeal a refusal to amend a record kept on me?
102.49 To whom should I address my appeal?
102.50 By when must I submit my appeal?
102.51 By what standards will the Privacy Officer review my appeal?
102.52 When will SBA respond to my appeal?
102.53 How will SBA respond to my appeal?
102.54 How can I obtain judicial review about an SBA Privacy Act
decision?
102.55 What must SBA tell the individuals from whom it collects
information?
102.56 Will SBA sell my name or address?
102.57 Do I have to give SBA my Social Security Number?
102.58 When will SBA show personnel records to my representative?
102.59 What fees will SBA charge me for my records?
102.60 May I be informed of disclosures made of my record?
102.61 Matching Program procedures.
Authority: 5 U.S.C. 552; 44 U.S.C. et seq.; 5 U.S.C. 552a; 18
U.S.C. 4203 (a)(1); 31 U.S.C. 1 et seq.; 31 U.S.C. 67 et seq.; E.O.
12600, 3 CFR 1987 Comp. p. 235.
PART 102--RECORD DISCLOSURE AND PRIVACY
Subpart A--Disclosure of Information
Sec. 102.1 Purpose.
This subpart describes the procedures by which the Small Business
Administration makes documents available under the Freedom of
Information Act (5 U.S.C. 552).
Sec. 102.2 How can I get records from SBA?
(a) You can go to the SBA office at which the records are kept, and
photocopy any final SBA decision, policy statement, or standard
operating procedure.
(b) For copies of all other records, you must send a letter request
to the SBA office at which the records are kept. The letter must
describe specific records you want. If you don't know which SBA office
keeps the records, you may send your letter to the nearest SBA District
Office. You may also send your letter to the Chief, Freedom of
Information Act and Privacy Act, 409 Third Street SW., Suite 5900,
Washington D.C. 20416. The office receiving your letter will forward it
to the correct office.
Sec. 102.3 How long will it take for SBA to respond to my request for
records?
(a) If you have met the fee requirements of Sec. 102.8, SBA will
respond within ten working days after the correct office receives your
request, except under unusual circumstances. Unusual circumstances
include especially large numbers of records requested, records not
located in the office handling the request, or the need to consult with
more than one interested government office. If you make your request on
behalf of another person, SBA will respond within ten working days
after you present a document signed by that person authorizing you to
request information on his behalf. If you make your request on behalf
of another person without including such signed authorization, SBA will
inform you of the requirements of this paragraph.
(b) If you send your request to the wrong office, that office will
send it to the correct office within ten working days and will send you
an acknowledgement letter.
(c) If SBA determines that it will be unusually difficult to comply
with your request within ten working days, SBA will respond within
twenty working days of the date upon which the correct office receives
your request, and will notify you that the extra time is required.
Sec. 102.4 How will SBA respond to my request?
Within the time limit described in Sec. 102.3, SBA will either:
(a) Give you the records you requested,
(b) Give you some or none of the records you requested, explain why
SBA has decided not to comply fully with your request, citing specific
exemptions where applicable, and explain how to appeal that decision,
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.
[[Page 57975]]
Sec. 102.6 How will SBA respond to requests for business information?
(a) What is business information? Business information is a trade
secret, or commercial or financial information, contained in records
provided to the SBA by any person and which may be protected from
disclosure under Exemption Four of the Freedom of Information Act (5
U.S.C. 552(b)(4)).
(b) Who is the submitter of business information? The submitter is
the business entity to which the business information pertains and
which submitted the information to SBA, either directly or through an
intermediary such as a bank, SBIC licensee, or representative.
(c) What if the business information has previously been released
to the general public? SBA will disclose such business information upon
request and payment of any required fees.
(d) What if the business information has not previously been
released to the general public? Except as provided in paragraph (e) of
this section:
(1) For all business information submitted prior to January 1,
1996:
(i) Unless SBA intends to deny the request to disclose business
information entirely, SBA will notify the submitter of the request upon
receipt, and will describe or provide the submitter with a copy of the
records it intends to disclose.
(ii) SBA will ask the submitter to identify business information
which would likely cause substantial competitive harm if disclosed and
why the harm would occur. The submitter will have 5 working days to
provide its response.
(2) For all business information submitted after January 1, 1996:
(i) Upon receipt of the request, SBA will notify the submitter when
it intends to release business information which previously has been
identified by the submitter as confidential and likely to cause
substantial competitive harm if disclosed. If other business
information is requested which SBA believes may cause substantial
competitive harm if disclosed, SBA will notify the submitter of that
request as well.
(ii) SBA will ask the submitter to explain why the identified
information would be likely to cause substantial competitive harm if
disclosed. The submitter will have 5 working days to provide its
response.
(3) SBA will carefully consider the submitter's objections to
disclosure, if any, but will not be bound by it. If a submitter objects
to the disclosure of information which SBA believes it must disclose,
SBA will disclose that information.
(4) If SBA decides to disclose information which the submitter
requested be withheld, SBA will give the submitter the maximum notice
possible before disclosure without violating the time constraints
imposed by the Freedom of Information Act. In this notice, SBA will
tell the submitter what it intends to disclose, and when it intends to
make disclosure.
(e) If SBA does not intend to release any business information it
will not notify the submitter of the request.
(f) SBA will promptly notify the submitter of any suit filed
against SBA to compel disclosure.
Sec. 102.7 Procedures for submitters of business information to SBA
after January 1, 1996.
(a) Submitters may mark or identify business information at the
time of submission which would likely cause them substantial
competitive harm if disclosed.
(b) After ten years from submission SBA will regard the previous
assertion as no longer in effect unless the submitter has renewed its
assertion in writing that disclosure would likely cause substantial
competitive harm.
Sec. 102.8 What fees will SBA charge?
(a) Basic fees. (1) For manual record search. SBA will charge $18
per hour.
(2) For computer record searches. SBA will charge the actual costs.
(3) For review and disclosure determinations. SBA will charge $18
per hour.
(4) Duplication. SBA will charge ten cents per page for photocopy
duplication, and the actual cost of reproduction for other methods.
(5) Certifying records. SBA will charge actual costs.
(6) For requested special types of delivery other than first-class
mail. SBA may charge the actual cost.
(b) If you are a representative of an educational institution, a
non-commercial scientific institution, or a member of the news media.
SBA will charge you only for the cost of duplication after the first
100 pages.
(1) What is an educational institution? A state-certified
preschool, elementary or secondary school, an accredited college or
university, an accredited institution of professional education, or any
accredited or state-certified institute of vocational education which
operates a program or programs of scholarly research.
(2) What is a non-commercial scientific institution? An
organization which is operated solely for the purpose of conducting
scientific research, the results of which are not intended to promote
any particular product or industry.
(3) What is a representative of an educational or non-commercial
scientific institution? A requester seeking records on behalf of that
institution who is authorized by that institution to do so, and who is
seeking those records for scholarly or scientific reasons, as long as
there is no commercial purpose to the request for records.
(4) What is a representative of the news media? An individual who
is actively gathering news for an entity that is organized and operated
to disseminate information to the general public. To be considered
``news media'', this organization may provide information by
subscription and may target its dissemination to a narrow section of
the general public as long as any member of the general public may
purchase information from it. If you are not employed by the news
media, but have a reasonable expectation that you will sell the
information you obtain to the news media, SBA may conclude that you are
a representative of the news media. SBA will not consider you to be a
representative of the news media if your request has a commercial
purpose, beyond the commercial purpose of selling information to the
general public.
(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
[[Page 57976]]
will estimate the fee and will not process your request until you tell
SBA that you are willing to pay the estimated amount, or until you
narrow the request so that the fee is less than $25.
(h) SBA will waive fees less than $25.
(i) If the fee is more than $250, or if you have a history of
failing to pay FOIA fees in a timely manner, SBA will ask you to remit
the estimated amount and any past due charges before sending you the
records.
(j) Who determines the fee? The SBA office which processes your
request.
(k) When do you pay the fee? You will be billed when SBA responds
to your request and you must pay within thirty-one calendar days.
(l) Failure to pay fees. (1) After the thirty-first day following
the date upon which you were billed, SBA will charge interest at the
maximum rate allowed under Title 31 of the United States Code, section
3717.
(2) If you owe fees for previous FOIA responses, SBA will not
respond to further requests unless you satisfy the amount due.
(3) If you do not pay the amount due within ninety calendar days of
the date you must pay, SBA may notify consumer credit reporting agents
of your delinquency.
(m) Unsuccessful searches. If SBA's search for records is
unsuccessful, it will still bill you for the search.
(n) Multiple requests. If you make multiple requests at the same
time, or at roughly the same time, SBA will aggregate your requests for
records. In no case will SBA give you more than the first two hours of
search time, or more than the first one hundred pages of duplication
without charge.
(o) Reduction of fees in the public interest. If SBA determines
that disclosure of the information you seek is in the public interest
because it is likely to contribute significantly to public
understanding of the operations or activities of the government, and
that you are not seeking the information in your own commercial
interests, SBA may waive or reduce the fee.
Sec. 102.9 How may I appeal a denial of my request for information or
a fee determination?
(a) You must write to the Chief, Freedom of Information Act and
Privacy Act Office at 409 Third Street SW., Suite 5900, Washington,
D.C. 20416.
(b) The Chief must receive your written appeal within 45 calendar
days of the date of the SBA fee determination from which you are
appealing.
(c)(1) If you are appealing a denial of your request for
information, the appeal must contain the following information:
(i) What records were denied.
(ii) The name and title of the individual responsible for denying
the request and the address of his or her office.
(iii) Any other information you deem appropriate.
(2) If you are appealing a fee determination, the appeal must
contain the following information:
(i) The address of the office which made the fee determination from
which you are appealing.
(ii) The fee that office charged.
(iii) The fee, if any, you believe should have been charged.
(iv) The reasons you believe that your fee should be lower than the
fee which the Agency charged.
(v) Any other information you deem appropriate.
(d) If anybody other than the Chief was the person who originally
made the determination you are appealing, the Chief will decide your
appeal. If the Chief was the person who originally made the
determination you are appealing, SBA's Assistant Administrator for
Hearings and Appeals will decide your appeal.
(e) SBA will take no more than twenty working days from the date
upon which it receives your appeal to decide it, unless unusual
circumstances require a thirty working days response time.
(f)(1) If you are appealing a decision to deny your request for
records, SBA will in response either:
(i) Give you the records you requested, or
(ii) Decline to give you the records you requested, tell you why
SBA has concluded that the records were exempt from disclosure under
the Freedom of Information Act, and tell you how to obtain judicial
review of SBA's decision.
(2) If you are appealing a fee determination, SBA will in response
either charge the fee you request or charge another fee and explain why
SBA has concluded that the fee it has decided to charge is appropriate.
Sec. 102.10 How can I get the Public Index of SBA materials?
(a) The Public Index is a document which provides identifying
information about official documents which SBA has issued.
(b) SBA has administratively determined, as permitted by the
Freedom of Information Act, that periodic publication and distribution
is unnecessary and impracticable.
(c) The Public Index is set forth in Appendix 3 of SBA Standard
Operating Procedure 40 03. You can review and photocopy the Public
Index, along with Standard Operating Procedure 40 03, at any SBA
office.
Sec. 102.11 What happens if I ask SBA for a record that another
Federal Agency generated?
Such a request is a request directed to the wrong office, as that
term is used in Sec. 102.3(b). SBA will forward your request to the
generating Agency.
Sec. 102.12 What happens if I ask for classified records?
SBA does not have original classification authority. Therefore, any
national security information or materials (as defined by Executive
Order 12356) in SBA's possession must have been classified by another
agency. If you ask for such material, SBA will forward that request to
the agency which originally classified those materials, with its
recommendations, if any.
Sec. 102.13 What happens if I subpoena records or testimony of
employees in connection with a civil lawsuit, criminal proceeding or
administrative proceeding?
(a) If your subpoena requires either the testimony of an SBA
employee or records within SBA's possession, the records themselves, or
both, the person to whom the subpoena is directed must consult with SBA
counsel in the relevant SBA office, who will in turn obtain approval
from the Associate General Counsel for Litigation. The Associate
General Counsel may delegate the authorization for production of
documents or testimony as appropriate to local SBA counsel.
(b) If SBA counsel approves of compliance with the subpoena, SBA
will comply.
(c) If SBA counsel disapproves of 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) A copy of a subpoena relating to a criminal matter should be
provided by SBA counsel to SBA's Inspector General.
Subpart B--The Privacy Act
Sec. 102.20 What privacy rights does this subpart regulate?
This subpart establishes SBA's policy and procedures safeguarding
an individual against an invasion of personal privacy.
(a) Except as otherwise provided by law or regulation, SBA will
permit you to do the following:
(1) Determine what records pertaining to you are collected,
maintained, used, or disseminated by the SBA;
(2) Object when records pertaining to you are obtained by SBA for a
particular
[[Page 57977]]
purpose and are proposed to be used or made available for another
purpose without your consent; and
(3) Gain access to information pertaining to you in records, have a
copy made of all or any portion of those records, and correct or amend
such records as appropriate;
(b) SBA will collect, maintain, use, or disseminate any record of
identifiable personal information in a manner that assures that such
action is for a necessary and lawful purpose, that the information is
current and accurate for its intended use, and that adequate safeguards
are provided to prevent misuse of such information.
(c) SBA will permit exemptions from the requirements of 5 U.S.C.
552a (Privacy Act of 1974) only where an important public policy need
for such exemption has been determined by specific statutory authority.
Sec. 102.21 How will SBA maintain records?
SBA records will:
(a) Contain only such information about an individual as is
relevant and necessary to accomplish a purpose of the Agency required
to be accomplished by statute, regulation, or by Executive Order of the
President.
(b) Be comprised, to the maximum practical extent, of an
individual's own statements when the information may result in an
adverse determination about an individual's rights, benefits, or
privileges under a Federal program.
Sec. 102.22 When will SBA disclose records?
SBA will not disclose to anyone any record which is contained in a
system of records, except that it will disclose a record:
(a) To the person about whom the record is maintained, or to that
person's agent, within the limits discussed in this subpart.
(b) To those employees of the Agency who have a need for the record
to perform their duties;
(c) When required under 5 U.S.C. 552 (Freedom of Information Act);
(d) For a routine use of the record compatible with the purpose for
which it was collected;
(e) To the Bureau of the Census for purposes of planning or
carrying out a census, survey, or related activity pursuant to Title
13, United States Code;
(f) To a recipient who has provided the Agency with advance
adequate written assurance that the record will be used solely as a
statistical research or reporting record, where the record is
transferred in a form that is not individually identifiable;
(g) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the U.S. Government, or for evaluation by the
Administrator of General Services or his or her designee to determine
whether the record has such value;
(h) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if:
(1) The activity is authorized by law, and
(2) The head of the agency or instrumentality has made a written
request to the Privacy Act Officer specifying the particular portion
desired and the law enforcement activity for which the record is
sought;
(i) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual. Upon disclosure
notification will be transmitted to the last known address of such
individual;
(j) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, or any joint
committee of Congress or subcommittee of any such joint committee;
(k) To the Comptroller General, or any of his or her authorized
representatives, in the course of the performance of the duties of the
General Accounting Office;
(l) Pursuant to the order of a court of competent jurisdiction; or
(m) To a consumer reporting agency in accordance with section
3711(f) of title 31.
Sec. 102.23 Special rules about personnel and equal employment
opportunity files.
(a) All SBA files which the Office of Personnel Management
determines are personnel files will be governed by the provisions of
parts 293 and 297 of Title 5 of the Code of Federal Regulations.
(b) All Equal Employment Opportunity complaint files will be
governed by the provisions of part 1611 of Title 29 of the Code of
Federal Regulations.
Sec. 102.24 What is a record?
A record is information which SBA maintains on an individual and
which includes either his name or some other symbol (such as a
fingerprint, a social security number, or a photograph) by which he or
she can be identified.
Sec. 102.25 What is a system of records?
A system of records is one or more records which SBA routinely
keeps for official purposes, and from which SBA can retrieve records by
using a name or personal identifier.
Sec. 102.26 What does this subpart mean by ``person to whom a record
pertains'' or ``you''?
When this subpart refers to the ``person to whom a record
pertains'' or uses the pronoun ``you'', it refers to a United States
citizen or a lawfully admitted alien. It does not refer to a
corporation, partnership, or sole proprietorship.
Sec. 102.27 What records are partially exempt from the provisions of
the Privacy Act?
(a) The following systems of records are exempt from certain
provisions of the Privacy Act: Audit Reports (system of records #SBA
015), Litigation and Claims Files (#SBA 070), Personnel Security Files
(#SBA 100), Security and Investigations Files (#SBA 120), Office of
Inspector General Referrals (#SBA 125), Investigations Division
Management Information System (#SBA 130), and Standards of Conduct
Files (#SBA 140).
(b) The provisions of the Privacy Act from which these systems of
records are exempt are subsections (c)(3)(Accounting of Certain
Disclosures), (d)(Access to Records), (e)(1), 4G, H, and I (Agency
Requirements), and (f)(Agency Rules) of the Privacy Act.
(c) The systems of records described in paragraph (a) are exempt
from the provisions of the Privacy Act described in paragraph (b) in
order to:
(1) Prevent the subject of investigations from frustrating the
investigatory process;
(2) Protect investigatory material compiled for law enforcement
purposes;
(3) Fulfill commitments made to protect the confidentiality of
sources and to maintain access to necessary sources of information; or
(4) Prevent interference with law enforcement proceedings.
(d) In addition to the foregoing exemptions, the systems of records
described in paragraph (a) of this section which are numbered as
numbers SBA 015, 100, 120, 125 and 130 are fully exempt from the
Privacy Act to the extent that they contain:
(1) Information compiled for the purpose of identifying individual
criminal offenders and alleged offenders and consisting only of
identifying data and notations of arrests, confinement, release, and
parole and probation status;
(2) Information compiled for the purpose of criminal investigation,
including reports of informants and investigators, and associated with
an identifiable individual; or
(3) Reports associated with an identifiable individual compiled at
any stage of the process of enforcement of
[[Page 57978]]
the criminal laws from arrest or indictment through release from
supervision.
(e) The systems of records described in paragraph (d) are fully
exempt from the Privacy Act to the extent described in that paragraph
because they are records maintained by the Investigations Division of
the Inspector General, which is a component of SBA which performs as
its principal function activities pertaining to the enforcement of
criminal laws within the meaning of 5 U.S.C. 552a(j)(2). They are
exempt in order to:
(1) Prevent the subjects of OIG investigations from using the
Privacy Act to frustrate the investigative process;
(2) Protect the identity of Federal employees who furnish a
complaint or information to the OIG, consistent with section 7(b) of
the Inspector General Act of 1978, 5 U.S.C. App. I;
(3) Protect the confidentiality of other sources of information;
(4) Avoid endangering confidential sources and law enforcement
personnel;
(5) Prevent interference with law enforcement proceedings;
(6) Assure access to sources of confidential information, including
that contained in Federal, State, and local criminal law enforcement
information systems;
(7) Prevent the disclosure of investigative techniques; or
(8) Prevent the disclosure of classified information.
Sec. 102.28 Information compiled for civil action.
Nothing in the regulations in the subpart allows an individual
access to any information compiled by the Agency in reasonable
anticipation of a civil action or proceeding. In the event that there
should be a question as to whether information should be disclosed
pursuant to this section, the Systems Manager for the System of Records
involved will obtain an opinion from Agency counsel, and will also
consult with the Privacy Act Officer.
Sec. 102.29 Who administers SBA's responsibilities under the Privacy
Act?
The Privacy Act Officer has overall responsibility for
administering the Privacy Act for SBA, and the Systems Manager is
responsible for administering the Privacy Act as to systems of records
within an SBA Office.
Sec. 102.30 How can I write to the Privacy Act Officer?
You can write to the Privacy Act Officer at 409 Third Street S.W.,
Suite 5900, Washington, D.C. 20416.
Sec. 102.31 Who appoints Systems Managers?
The Senior official in each field office and each Headquarters
program area designates himself or herself or appoints another as the
Systems Manager for that office.
Sec. 102.32 What do Systems Managers do?
Systems Managers have the following responsibilities, among others,
for the offices for which they are appointed:
(a) Acting as the initial contact person to individuals seeking
access or amendment of their records.
(b) Responding to requests for information.
(c) Discussing the availability of records with individuals.
(d) Amending records in cases where amended information is not
controversial and does not involve policy decision making.
(e) Informing individuals of any reproduction fees to be charged.
(f) Assuring that their systems of records contains no record
describing how any individual exercises rights guaranteed by the First
Amendment unless expressly authorized by statute or by the individual
about whom the record is maintained, or unless pertinent to and within
the scope of an authorized law enforcement activity. First Amendment
rights include, but are not limited to, freedom to follow religious and
political beliefs, freedom of speech and of the press, and freedom of
assembly and the right to petition government.
Sec. 102.33 How can I write to a Systems Manager?
You can write to a Systems Manager by writing to the SBA Office
which maintains the record you are seeking. If you do not know which
office that is, or you do not know the address of that office, you can
write to the Privacy Act Officer at 409 3rd Street S.W., Suite 5900,
Washington, D.C. 20416, who will forward your request to the proper
Systems Manager.
Sec. 102.34 How can I see records kept on me?
(a) You may look at any information pertaining to yourself if it is
contained in any SBA system of records, unless some law or regulation
prohibits it.
(b) In order to see this information, you must ask for it in
writing and the writing must identify what records you want. The
writing should be addressed to the Systems Manager overseeing the
system of records.
(c) The Systems Manager (or, when appropriate, the Privacy Act
Officer) may ask for more specific information about the system of
records in which the document you are seeking is kept, and may ask you
for identification. The Systems Manager may ask you for your social
security number but you are not obliged to present it and your request
will not be denied simply because you do not provide it. The Systems
Manager may, however, deny your request if he or she cannot determine
that you are the person about whom the information pertains.
Sec. 102.35 How long will it take SBA to respond to my request?
The Systems Manager will respond within ten working days.
Sec. 102.36 How will SBA respond to my request?
The Systems Manager will inform you that:
(a) Your request is denied, in which case he or she will set forth
the reasons for denial and your rights to appeal; or
(b) Your request is granted and you may view your record, in which
case he or she will set forth the time and date for you to review your
record in the presence of an SBA employee; or
(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 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. You may appeal to the Privacy Act Officer a
decision to deny you access to any other record. See Sec. 102.30,
above.
Sec. 102.39 When must I appeal to the Privacy Act Officer?
Your appeal must reach the Privacy Act Officer on or before 30
calendar days after the date the denial was issued. If your appeal is
based on the failure of the Systems Manager to
[[Page 57979]]
answer your request, your appeal must reach the Privacy Act Officer on
or before 90 calendar days after the date by which the Systems Manager
should have responded under section 102.35.
Sec. 102.40 When will SBA respond to my appeal?
The Privacy Act Officer will respond to you within 30 working days
of the date when your appeal was received.
Sec. 102.41 How will SBA respond to my appeal?
The Privacy Act Officer will inform you that:
(a) Your request is denied, in which case the reasons for denial
will be set forth along with your rights to judicial review of SBA's
decision; or
(b) Your request is granted and you may view your record, in which
case the time and date for you to review your records in the presence
of an SBA employee will be set forth; or
(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 Privacy Act
Officer, who will forward it to the right Systems Manager. See
Sec. 102.30.
Sec. 102.43 What should my petition say?
Your petition should include the following:
(a) In what system of records the record you want amended is kept.
(b) What record you want amended.
(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 will maintain only accurate, complete, and up-to-date records
which are relevant to accomplish some purpose of the Agency required by
law, regulation, or Executive Order of the President. There are four
grounds for amending a record. They are:
(a) The record is not accurate.
(b) The record is not relevant to any legitimate SBA concern.
(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 relevant information
about the material contained in the record which was not included in
the record.
Sec. 102.45 Will SBA ask me for more information after I make my
request?
The Systems Manager (or, when appropriate, the Privacy Act Officer)
may ask for more specific information about the system of records in
which the document you are seeking is kept, and may ask you for
identification. The Systems Manager may ask you for your social
security number, but you are not obliged to present it and your request
will not be denied simply because you do not provide it. The Systems
Manager may, however, deny your request if he or she cannot determine
that you are the person about whom the information pertains.
Sec. 102.46 When will SBA respond to my request?
The Systems Manager will acknowledge receipt of your request within
10 working days and issue a written response within 30 working days.
Sec. 102.47 How will SBA respond to my request?
The Systems Manager will:
(a) Make the amendment you request, in which case he or she will
send all individuals who had previously received a copy of that record
a copy of the amended record; or
(b) Amend the record, but not in complete accordance with your
request, in which case he or she will send all individuals who had
previously received a copy of that record a copy of the amended record
and will, in addition, tell you why your request was not granted in
full and tell you of your appeal rights; or
(c) Decline to amend the record, in which case he or she will tell
you why your request was not granted and tell you of your appeal
rights.
Sec. 102.48 How do I appeal a refusal to amend a record kept on me?
Your appeal should be in writing and include the following:
(a) All of the information contained in your original request to
amend the record.
(b) The response of the Systems Manager, if any, including the
reasons for denying your request, if any.
(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 Privacy Act
Officer. See Sec. 102.30.
Sec. 102.50 By when must I submit my appeal?
Your appeal must be received by the Privacy Act Officer within 30
calendar days of the date upon which the Systems Manager declined to
amend your records, or within 90 calendar days of the date upon which
the Systems Manager should have responded to your request under
Sec. 102.46 if the Systems Manager did not so respond.
Sec. 102.51 By what standards will the Privacy Officer review my
appeal?
The Privacy Act Officer will decide your appeal using the criteria
of accuracy, relevance, timeliness, and completeness described in
Sec. 102.44. The Privacy Act Officer will review all relevant
information and may seek the views of other SBA personnel. The Privacy
Act Officer may review information not available to or not used by the
Systems Manager.
Sec. 102.52 When will SBA respond to my appeal?
The Privacy Act Officer will respond to your appeal within 30
working days of the date upon which it is received, unless the
Administrator determines that unusual circumstances exist, in which
case the Privacy Act Officer will notify you of the presence of these
unusual circumstances within 30 working days of the date upon which he
or she received your appeal, and will respond to your appeal within 60
working days of the date of receipt.
Sec. 102.53 How will SBA respond to my appeal?
The Privacy Act Officer will:
(a) Make the amendment you request, in which case he or she will
send all individuals who had previously received a copy of that record
a copy of the amended record; or
[[Page 57980]]
(b) Amend the record, but not in complete accordance with your
request, in which case he or she will
(1) Send all individuals who had previously received a copy of that
record a copy of the amended record, and
(2) Tell you why your request was not granted in full and tell you
of your rights to judicial review, and
(3) Mark the areas of dispute, include your statement of
disagreement in the file, and, if appropriate, include a concise
statement of why the Agency refused to amend the record in accordance
with your request, and send this material to all individuals who had
previously received a copy of that record; or
(c) Decline to amend the record in any respect, in which case he or
she will
(1) Tell you why your request was not granted and tell you of your
rights to judicial review, and
(2) Mark the areas of dispute, include your statement of
disagreement in the file, and, if appropriate, include a concise
statement of why the Agency refused to amend the record in accordance
with your request, and send this material to all individuals who had
previously received a copy of that record.
Sec. 102.54 How can I obtain judicial review about an SBA Privacy Act
decision?
You may bring a civil action against SBA in a district court of the
United States whenever the SBA:
(a) Makes a final determination not to provide you with access to
or to amend your record in accordance with your request;
(b) Fails to maintain your records with such accuracy, relevance,
timeliness and completeness as is necessary to assure fairness in any
determination relating to the qualifications, character, rights, or
opportunities of, or benefits to you that may be made on the basis of
such record, and consequently a determination is made which harms you,
or
(c) Fails to comply with any other provisions of the Privacy Act (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 sell my name or address?
SBA will not sell your name or address to anyone. Someone might
acquire it, though, under the Freedom of Information Act (5 U.S.C.
552).
Sec. 102.57 Do I have to give SBA my Social Security Number?
(a) No. You need not give SBA your Social Security Number, even if
SBA asks for it.
(b) If SBA asks you for your Social Security Number, it must also
tell you under what authority it is seeking to know your Social
Security Number, and for what purpose.
(c) SBA cannot withhold a benefit solely because you refuse to tell
it your Social Security Number.
Sec. 102.58 When will SBA show personnel records to a representative?
(a) If you go to where the records are kept, SBA will permit one
person of your choosing to inspect the records with you.
(b) If you want your representative to inspect the records without
you, you must give SBA a written authorization.
(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 ten cents
per page. SBA will not charge you for finding or reviewing your
records. Fees less than $25 will be waived.
Sec. 102.60 May I be informed of disclosures made of my records?
SBA will tell you what disclosures it made of your records if you
ask us, except that SBA will not tell you about disclosures it made to
another federal agency or government entity for law enforcement
purposes.
Sec. 102.61 Matching Program procedures.
(a) SBA will comply with the Computer Matching and Privacy
Protection Act of 1988. (Public Law 100-503, as amended). This Act
establishes procedures federal agencies must use if they want to match
their computer lists.
(b) If SBA adopts any procedures to supplement its compliance with
the Computer Matching and Privacy Protection Act of 1988 which are not
mandated in that Act, SBA will publish those procedures in Standard
Operating Procedure (SOP) 40 04. You can get a copy of SOP 40 04 at any
SBA Office.
(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 all such
agreements by writing to the Privacy Act Officer.
PART 137--[REMOVED]
2. Part 137 is removed.
Dated: November 13, 1995.
Philip Lader,
Administrator.
[FR Doc. 95-28446 Filed 11-22-95; 8:45 am]
BILLING CODE 8025-01-P
