[Federal Register Volume 68, Number 198 (Tuesday, October 14, 2003)]
[Rules and Regulations]
[Pages 59091-59094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25878]


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SMALL BUSINESS ADMINISTRATION

13 CFR Part 102

RIN 3245-AE94


Disclosure of Information Regulations

AGENCY: Small Business Administration (SBA).

ACTION: Final rule.

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SUMMARY: SBA is adopting its proposed regulations implementing the 
Electronic Freedom of Information Act Amendments of 1996 (EFOIA) and 
updating SBA's FOIA regulations to conform to current law and 
procedure. SBA's amended regulations will make more information 
available electronically, give SBA more time to respond to certain 
requests, and increase processing fees to more accurately reflect the 
full cost of search and document review.

DATES: This rule is effective on November 13, 2003.

FOR FURTHER INFORMATION CONTACT: Kitty Higgins, Paralegal Specialist, 
Freedom of Information/Privacy Acts (FOI/PA) Office, at 202-401-8203 or 
[email protected].
    Individuals with disabilities may obtain this document in an 
alternate format (e.g., Braille, large print, audiotape, or computer 
diskette) upon request to the contact person listed in the preceding 
paragraph.

SUPPLEMENTARY INFORMATION: On September 11, 2002, SBA issued a proposed 
rule to amend its Disclosure of Information regulations (13 CFR part 
102, Subpart A) based on the Electronic Freedom of Information Act 
Amendments of 1996 (EFOIA), 5 U.S.C. 552(a)(2), 67 FR 57539. EFOIA 
includes provisions authorizing or requiring agencies to promulgate 
regulations

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implementing certain EFOIA statutory requirements, including the 
aggregation of FOIA requests, and the expedited processing of FOIA 
requests. In addition, EFOIA changes the time limit for responding to a 
FOIA request from ten to twenty working days, and includes provisions 
regarding the availability of documents in electronic form, the 
treatment of electronic records, and the establishment of ``electronic 
reading rooms.'' This final rule will revise SBA's FOIA regulations to 
comply with EFOIA and to reflect current SBA FOIA procedures and 
practices. It also increases the amount SBA can charge for search and 
review time to $30 per hour.
    The Freedom of Information/Privacy Acts (FOI/PA) Office received 
one comment, which was not substantive. The commenter suggested that 
the regulations ``should convey the sense of openness associated with 
the FOIA.'' The commenter also suggested that the regulations ``should 
require SBA's FOIA Office to post in its electronic reading room* * 
*those documents which have been released 5 or more times and are 
likely to be requested again* * *.'' SBA's regulations are in 
compliance with both the EFOIA and Department of Justice guidelines. In 
addition, there is a ``Frequently Requested Records'' section in the 
electronic reading room.

Compliance With Executive Orders 12866, 12988, and 13132, the 
Regulatory Flexibility Act (5 U.S.C. 601-612), and the Paperwork 
Reduction Act (44 U.S.C. Ch. 35)

    The Office of Management and Budget has determined that this rule 
is not a ``significant regulatory action'' under Executive Order 12866, 
Regulatory Planning and Review. These amendments are 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 U.S. economy. Instead, these changes will make SBA's 
FOIA program more streamlined and easier for the public to understand 
and use.
    SBA has determined that this final rule will not have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612. Under the 
FOIA, agencies may recover only the direct costs of searching for, 
reviewing, and duplicating the records processed for requesters. Thus, 
fees assessed by SBA are nominal.
    For the purpose of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, 
SBA has determined that this rule would not impose new reporting or 
record keeping requirements.
    For purposes of Executive Order 13132, SBA has determined that this 
rule does not have any federalism implications warranting the 
preparation of a Federalism Assessment.
    For purposes of Executive Order 12988, SBA has determined that this 
rule is drafted, to the extent practicable, in accordance with the 
standards set forth in that order.

List of Subjects in 13 CFR Part 102

    Freedom of information, Privacy.

0
For the reasons set forth in the preamble, amend part 102 of title 13 
of the Code of Federal Regulations as follows:

PART 102--RECORD DISCLOSURE AND PRIVACY

0
1. The authority citation for part 102 continues to read as follows:

    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.


0
2. Revise Subpart A of part 102 to read as follows:
Subpart A--Disclosure of Information
Sec.
102.1 General provisions.
102.2 Public reading rooms.
102.3 Requirements pertaining to the submission of requests.
102.4 Timing of responses to requests.
102.5 Responses to requests.
102.6 Fees.
102.7 Business information.
102.8 Appeals.
102.9 Public Index.

Subpart A--Disclosure of Information


Sec.  102.1  General provisions.

    This subpart describes the procedures that the U.S. Small Business 
Administration (SBA) follows for responding to requests made under the 
Freedom of Information Act (FOIA) (5 U.S.C. 552).


Sec.  102.2  Public reading rooms.

    (a) SBA maintains a public reading room in the Headquarters 
Reference Library at 409 3rd St., SW., Suite 5000, Washington, DC 20416 
where you may read and copy the following:
    (1) Final SBA opinions and orders issued by the Office of Hearings 
and Appeals in adjudicating a case,
    (2) Official non-privileged policy statements, opinions, or 
interpretations,
    (3) Standard operating procedures affecting members of the public,
    (4) Records SBA has released in response to previous FOIA requests 
which, because of their subject matter, SBA determines are likely to be 
requested again, and
    (5) An index of the records referred to under paragraph (a)(4) of 
this section.
    (b) The records described in paragraph (a) of this section are 
available in the SBA Online Reading Room at http://www.sba.gov/library/.
    (c) Reading room records created on or after November 1, 1996 are 
available electronically.


Sec.  102.3  Requirements pertaining to the submission of requests.

    (a) You may make a request for SBA records by writing directly to 
the program or field office that maintains the records, or to the 
Freedom of Information/Privacy Acts (FOI/PA) Office by mail to 409 3rd 
St., SW., Washington, DC 20416 or fax to 202-205-7059 or e-mail to 
[email protected]. The office receiving your request will forward it to the 
correct office. The correct office will consider your request to be 
complete only when you:
    (1) Describe the records sought in enough detail for an Agency 
employee to locate the records with a reasonable amount of effort;
    (2) Agree to pay applicable fees pursuant to Sec.  102.6, unless 
you seek a waiver of fees; and
    (3) Make an advance payment if either the correct office estimates 
the fees will exceed $250 or you owe for past FOIA fees. If you owe 
past due FOIA fees, you must pay the estimated amount, plus any past 
due charges and interest.
    (b) If you make a request on behalf of another person for 
information pertaining to that person, your request must include an 
authorization signed by the latter, allowing SBA to release such 
information to you.
    (c) To make a Privacy Act request for records about yourself, you 
must follow the procedures detailed in Sec.  102.34(b) of Subpart B.


Sec.  102.4  Timing of responses to requests.

    (a) In general. Subject to paragraphs (b) and (c) of this section, 
once the correct office receives your complete request, that office 
must respond within 20 working days unless that office notifies you in 
writing that the time is extended by an additional 10 working days for 
one or more of the following reasons:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments separate from the office 
processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded 
in a single request; or

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    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having substantial interest in 
the determination of the request or among two or more components of the 
agency having substantial subject matter interest therein.
    (b) Additional time. Where an extension of more than ten working 
days will be necessary due to exceptional circumstances, the correct 
office will give the requester an opportunity to modify the request so 
it may be processed within the usual time limits in paragraph (a) of 
this section, or to arrange an alternative time period for processing 
the request or a modified request.
    (c) Expedited processing. (1) SBA will give expedited processing to 
requests and appeals upon written request, if one of the following 
conditions is met:
    (i) You demonstrate someone's life or physical safety will be in 
imminent danger if SBA does not expedite its response to your request; 
or
    (ii) You are a news media representative (as defined in Sec.  
102.6(b)(8)) who demonstrates an urgent need to inform the public about 
an actual or alleged Federal government activity.
    (2) You must provide a written statement, certified to be true and 
correct to the best of your knowledge and belief, explaining in detail 
one of these circumstances of ``compelling need'' and submit it to the 
correct office. Within 10 working days of its receipt of such a 
statement, or sooner, if SBA concludes that circumstances warrant, that 
office will notify you of its decision whether or not to grant 
expedited processing. If expedited processing is granted, the request 
shall be given priority and processed as soon as practicable. If an 
expedited processing request is denied, an appeal may be submitted 
which will be acted on expeditiously.
    (d) Multiple requests. Where an office believes that multiple 
requests submitted by a requester, or by a group of collaborating 
requesters, constitute a single request that would otherwise involve 
unusual circumstances, and the requests involve clearly related 
matters, they will be aggregated for processing.


Sec.  102.5  Responses to requests.

    Within the time limits described in Sec.  102.4, SBA will respond 
to your request in writing. SBA's response will do one or more of the 
following:
    (a) Advise you that SBA is releasing the requested documents;
    (b) Explain why SBA has decided not to give you all or some of the 
records requested, citing specific FOIA exemptions where applicable and 
noting the number of pages withheld (except where noting the number of 
pages withheld would harm an interest protected by an exemption), and 
explain how to appeal that decision;
    (c) Provide a cost estimate or bill you for the actual fee, less 
any advance payment you have made. SBA will not provide any records 
until payment in full is received; and/or
    (d) Advise you that SBA will refer your request for records 
generated by another Federal agency to that agency for proper 
processing.


Sec.  102.6  Fees.

    (a) In general. SBA will charge fees for processing requests as 
outlined in this section. Fees must be paid by check or money order 
made payable to SBA.
    (b) Definitions and applicable fees. For purposes of this section:
    (1) Direct costs means those expenses that SBA actually incurs in 
searching for and duplicating (and, in the case of commercial use 
requesters, reviewing) documents in response to an FOIA request. Direct 
costs include the salary of the employee performing the work and the 
cost of operating duplication machinery.
    (2) Search means the process of looking for and retrieving records 
responsive to a request. It includes page-by-page or line-by-line 
identification of information within records and also includes 
reasonable efforts to locate and retrieve information from records 
maintained in electronic form or format. SBA may charge search fees 
even if they fail to locate records or if records located are 
determined to be exempt from disclosure. Search fees are $30 per hour.
    (3) Duplication means the making of a copy of a record. Copies can 
take the form of paper, microfilm, audiovisual materials, or electronic 
records (for example, magnetic tape or disk), among others. SBA will 
charge $.10 per page for photocopy duplication and the actual cost for 
other methods. SBA will honor a requester's specified preference of 
form or format of disclosure if the record is readily reproducible with 
reasonable efforts in the requested form or format by the office 
responding to the request.
    (4) Review refers to the examination of documents responsive to a 
request in order to determine whether any portion of it is exempt from 
disclosure. It includes processing any record for disclosure, e.g., all 
necessary redaction and preparation for disclosure. It also includes 
time spent considering any formal objection to disclosure made by a 
business submitter under Sec.  102.7, but does not include time spent 
resolving general legal or policy issues regarding the application of 
exemptions. Review costs are recoverable even if a record is ultimately 
not disclosed. Only commercial use requesters are assessed review 
costs. Review costs are $30 per hour.
    (5) A commercial use request refers to a request from or on behalf 
of a person who seeks information for a use or purpose that furthers 
his or her commercial, trade or profit interests, which can include 
furthering those interests through litigation. When it appears the 
requester will put the requested records to a commercial use, either 
because of the nature of the request itself or where SBA has reasonable 
cause to doubt a requester's stated use, SBA will seek additional 
clarification. SBA will charge commercial use requesters the full 
direct costs of searching for, reviewing for release, and duplicating 
the records sought.
    (6) Educational institution means 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 institution of vocational education that operates a 
program of scholarly research. An educational institution requester 
must show that the request is authorized by and is made under the 
auspices of a qualifying institution and that the records are not 
sought for a commercial use but are sought to further scholarly 
research. SBA will provide documents to requesters in this category for 
the cost of reproduction alone, excluding charges for the first 100 
pages.
    (7) Noncommercial scientific institution means an institution that 
is not operated on a commercial basis, and that is operated solely for 
the purpose of conducting scientific research the results of which are 
not intended to promote any particular product or industry. A 
noncommercial scientific institution requester must show that the 
request is authorized by and is made under the auspices of a qualifying 
institution and that the records are not sought for a commercial use 
but are sought to further scientific research. SBA will charge 
noncommercial scientific institution requesters for the cost of 
reproduction alone after the first 100 pages.
    (8) A representative of the news media is a requester actively 
gathering information for one or more news media who:
    (i) Is employed by a news medium or

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    (ii) Has a reasonable expectation of selling the information 
obtained to one or more news media. A news medium is an entity 
organized and operated to distribute information to the general public. 
A news medium may provide information by subscription and may target 
its dissemination to a narrow section of the general public so long as 
any member of the general public may purchase information from it. A 
request for records supporting the news dissemination function of the 
requester shall not be considered to be for commercial use. A news 
media requester must show that the request is authorized by and is made 
under the auspices of a qualifying news medium and that the records are 
not sought for a commercial use but are sought to further the 
dissemination of information to the general public. SBA will provide 
documents to representatives of the news media for the cost of 
reproduction alone, excluding charges for the first 100 pages.
    (9) A member of the general public is a requester who does not fit 
into any of the categories in paragraphs (b)(1) through (8) of this 
section. SBA will charge requesters in this category search time after 
the first two hours and duplication after the first 100 pages.
    (c) Other charges. SBA will recover the full costs of providing 
special services, such as certifying that records are true copies or 
sending copies by other than ordinary mail, to the extent that SBA 
elects to provide them.
    (d) Charging interest. SBA will charge interest on any unpaid bill 
starting on the 31st day following the date of billing. Interest 
charges will accrue at the maximum rate allowed under 31 U.S.C. 3717. 
If still unpaid by the 91st day after the billing date, SBA may notify 
consumer credit reporting agencies of the delinquency and/or take other 
appropriate action in accordance with law.
    (e) Fee waivers or reductions. SBA will furnish responsive records 
without charge or at a reduced charge when a requester can show that 
disclosure of the information is in the public interest because it is 
likely to contribute significantly to public understanding of the 
operations or activities of the government and is not primarily in the 
commercial interest of the requester.
    (1) You must submit a request for a fee waiver or reduction to the 
initial processing office.
    (2) On the basis of the information that you provide, the initial 
processing office will determine whether you meet the fee waiver 
requirements outlined in this section.


Sec.  102.7  Business information.

    (a) In general. Business information provided to SBA from a 
submitter will only be disclosed in accordance with this section.
    (b) Definitions. For purposes of this section:
    (1) Business information is commercial or financial information 
obtained by SBA from a submitter that may arguably be protected from 
disclosure under Exemption 4 of the FOIA.
    (2) Submitter is any person or entity who provides business 
information, directly or indirectly to SBA.
    (c) Designation of business information. Submitters of business 
information will use reasonable, good-faith efforts to designate, by 
appropriate markings, either at the time of submission or at a 
reasonable time thereafter, any portions of their submissions that they 
consider to be protected from disclosure under Exemption 4 of the FOIA. 
Designations will expire ten years after the date of the submission 
unless the submitter requests, and provides justification for, a longer 
designation period.
    (d) Notice to submitters. SBA will provide a submitter with written 
notice of a FOIA request or administrative appeal that seeks its 
business information whenever SBA intends to release that information. 
The notice will either describe the business information or include 
copies of the records in the form SBA proposes to release them. SBA 
will also advise the requester that the submitter is being given the 
opportunity to object to any proposed disclosure. When notification of 
a voluminous number of submitters is required, SBA may post or publish 
such a notice in a place reasonably likely to accomplish notice.
    (e) Opportunity to object to disclosure. SBA will give the 
submitter ten working days from the date of the written notice to 
submit a detailed written statement specifying all grounds upon which 
disclosure is opposed. A reasonable extension of time may be granted by 
the correct office upon good cause shown by the submitter. The 
submitter's statement must demonstrate why it believes information is a 
trade secret or commercial or financial information that is privileged 
or confidential. If a submitter fails to timely respond to the notice, 
such failure will be deemed a waiver by the submitter of any objection 
to the disclosure of the information. Information provided by a 
submitter under this paragraph may itself be subject to disclosure 
under the FOIA.
    (f) Notice of intent to disclose. SBA will consider a submitter's 
objections and specific grounds for nondisclosure in accordance with 
paragraph (e) of this section in deciding whether to disclose business 
information. If SBA decides to disclose business information despite 
the objection of a submitter, SBA will give the submitter written 
notice, advising the submitter what will be disclosed, and that such 
disclosure will occur within 10 working days from the date of the 
notice.


Sec.  102.8  Appeals.

    (a) If you are dissatisfied with SBA's response to your request, 
you may appeal an adverse determination denying your request, in any 
respect, to the Chief, FOI/PA Office, 409 Third St., SW., Washington, 
DC 20416.
    (b) The Chief must receive your signed, written appeal within 60 
calendar days of the date of the SBA determination from which you are 
appealing.
    (c) You should include as much information as possible, i.e., 
identifying the records not disclosed, the reason(s) a fee should be 
waived, or the reason(s) a request should be expedited. You must 
identify the deciding official and his/her office location.
    (d) The Chief will decide your appeal unless the Chief originally 
made the determination you are appealing. In that case, the Assistant 
Administrator for Hearings and Appeals will decide your appeal.
    (e) If SBA upholds the initial adverse determination, SBA will tell 
you why the decision has been upheld and tell you how to obtain 
judicial review of the decision.


Sec.  102.9  Public Index.

    (a) The Public Index is a document that provides identifying 
information about official documents that SBA has issued.
    (b) SBA has administratively determined, as permitted by FOIA, that 
periodic publication and distribution of the Public Index is 
unnecessary and impracticable.
    (c) The Public Index is an appendix to SBA Standard Operating 
Procedure 40 03. You can obtain the latest edition of SOP 40 03 from 
SBA's Online Reading Room at http://www.sba.gov/library or by 
requesting it from any SBA office.

    Dated: October 1, 2003.
Hector V. Barreto,
Administrator.
[FR Doc. 03-25878 Filed 10-10-03; 8:45 am]
BILLING CODE 8025-01-P