Record Disclosure and Privacy, 46369-46379 [2017-21204]

Agencies

• SMALL BUSINESS ADMINISTRATION

[Federal Register Volume 82, Number 192 (Thursday, October 5, 2017)]
[Rules and Regulations]
[Pages 46369-46379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21204]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 82, No. 192 / Thursday, October 5, 2017 / 
Rules and Regulations

[[Page 46369]]



SMALL BUSINESS ADMINISTRATION

13 CFR Part 102

RIN 3245-AG52


Record Disclosure and Privacy

AGENCY: U.S. Small Business Administration.

ACTION: Direct final rule; request for comments.

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SUMMARY: The U.S. Small Business Administration (SBA) is issuing this 
direct final rule to amend its regulations for disclosure and 
production of information under the Freedom of Information Act (FOIA). 
This rule updates and streamlines the language of several procedural 
provisions and incorporates changes brought about by amendments to the 
FOIA under the OPEN Government Act of 2007, the OPEN FOIA Act of 2009, 
and the FOIA Improvement Act of 2016.

DATES: This rule is effective January 3, 2018 without further action, 
unless adverse comment is received by November 6, 2017. If adverse 
comment is received, the U.S. Small Business Administration will 
publish a timely withdrawal of the rule in the Federal Register.

ADDRESSES: Identify your comments by RIN 3245-AG52 and submit them by 
one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov, 
follow the Web site instructions for submitting comments.
     Mail or Hand Deliver/Courier: Oreoluwa Fashola, Freedom of 
Information/Privacy Acts (FOI/PA) Office, 409 Third Street SW., Mail 
Code 2441, Washington, DC 20416.
    Please be aware that SBA will only accept comments for this direct 
final rule on https://www.regulations.gov, which will be posted 
publicly.
    If you wish to submit confidential business information (CBI) as 
defined in the User Notice at www.regulations.gov, you must submit such 
information to the Chief, Freedom of Information/Privacy Acts (FOI/PA) 
Office, 409 Third Street SW., Mail Code 2441, Washington, DC 20416, or 
send an email to foia@sba.gov. Highlight the information that you 
consider to be CBI and explain why you believe SBA should withhold this 
information as confidential. SBA will review your information and 
determine whether it will make the information public.

FOR FURTHER INFORMATION CONTACT: Oreoluwa Fashola, Freedom of 
Information/Privacy Acts (FOI/PA) Office, at 202-401-8203 or 
foia@sba.gov.

SUPPLEMENTARY INFORMATION: SBA is issuing this direct final rule to 
amend its regulations for disclosure and production of information 
under the Freedom of Information Act, 5 U.S.C. 552 (FOIA). This direct 
final rule updates and streamlines the language of several procedural 
provisions and incorporates certain changes brought about by amendments 
to the FOIA under the Openness Promotes Effectiveness in our National 
Government Act of 2007 (OPEN Government Act), Public Law 110-175 
(2007), and the OPEN FOIA Act of 2009, Public Law 111-83 (2009), which 
have been incorporated into agency practice but not reflected in the 
regulations, and the FOIA Improvement Act of 2016, Public Law 114-185 
(2016). The FOIA Improvement Act of 2016 provides, among other things, 
that agencies must allow a minimum of 90 days for requesters to file an 
administrative appeal. The Act also requires that agencies notify 
requesters of the availability of dispute resolution services at 
various times throughout the FOIA process. This rule updates the 
Agency's regulations in 13 CFR part 102, subpart A to reflect those 
statutory changes.

Section-by-Section Analysis

    Section 102.1 (General provisions) is revised to remove outdated 
wording and to incorporate additional policies and procedures relevant 
to the FOIA process. SBA is also amending this section to more clearly 
define a component. Component is defined in Sec.  102.1(b) as each 
separate bureau, office, division, district office, regional office, 
area office service center, loan processing center or central office 
duty station within the SBA that is responsible for processing FOIA 
requests. A full list of the types of records maintained by different 
SBA components is provided in Appendix A of this rule. This section is 
being revised to include the current definition of a record under the 
FOIA. Section 9 of the OPEN Government Act amended the definitions 
section of the FOIA, 5 U.S.C. 552(f), by including within the 
definition of ``record'' any information ``maintained for an agency by 
an entity under Government contract, for the purposes of records 
management.'' This amendment makes clear that records, in the 
possession of Government contractors for purposes of records 
management, are considered agency records for purposes of the FOIA. 
Through this change to the regulations, SBA adopts the statutory 
definition of ``record.''
    Section 102.2 (Proactive disclosure of records) is revised to more 
clearly reflect the FOIA Improvement Act of 2016's requirement that 
records the FOIA requires agencies to make available for public 
inspection must be in an electronic format, rather than simply made 
available for public inspection and copying. Such records are available 
via the internet through the electronic reading rooms of each 
component. For those individuals with no access to the internet, the 
SBA FOI/PA Office or the component Public Liaison can provide 
assistance with access to records available in the electronic reading 
rooms.
    Section 102.3 (Requirements pertaining to the submission of 
requests) is revised to explain that the requester will receive the 
quickest response if the request is directed to the component that 
maintains the records. This section also provides that requesters may 
discuss their requests with the component's FOIA Contact or the FOIA 
Public Liaison in advance of making a request, as well as to clarify a 
request already made. New paragraph (b), which describes the process 
under which SBA may administratively close a request if a requester 
fails to comply with a request for additional information.
    Section 102.4 (Responsibility for responding to requests) is 
revised to advise requesters of who may grant or deny requests, re-
routing of misdirected requests, and of the need to consult,

[[Page 46370]]

refer, or coordinate with another component and/or agency.
    Section 102.5 (Timing of responses to requests) formerly Sec.  
102.4 is revised to include a requirement that components notify 
requesters of the availability of assistance from the Office of 
Government Information Services (OGIS) at the National Archives and 
Records Administration when the component gives notice to requesters 
that the request involves unusual circumstances. This notification is 
required by the FOIA Improvement Act of 2016.
    Section 102.6 (Responses to requests) is revised to include 
requirements that components notify requesters of the availability of 
assistance from a FOIA Public Liaison and OGIS when providing 
requesters with responses to their requests. These notifications are 
required by the FOIA Improvement Act of 2016.
    Section 102.7 (Confidential commercial information) is revised to 
update the language of the current definitions and provide a more 
detailed description for SBA processes for notification to a submitter 
of business information.
    Section 102.8 (Fees) is revised to identify the different types of 
requester fee categories and clarify some of the definitions used by 
SBA in determining a requester's fee category. For instance, 
``Commercial use request,'' would clarify that components will make 
determinations on commercial use on a case-by-case basis. Also this 
section is revised to conform to recent decisions of the D.C. Circuit 
Court of Appeals addressing two FOIA fee categories: ``representative 
of the news media'' and ``educational institution.'' See Cause of 
Action v. FTC, 799 F.3d 1108 (D.C. Cir. 2015); Sack v. DOD, 823 F.3d 
687 (D.C. Cir. 2016). The Agency's existing FOIA regulations state that 
a representative of the news media is any person or entity that is 
organized and operated to publish or broadcast news to the public that 
actively gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to an audience. In Cause of 
Action, 799 F.3d at 1125, the court held that a representative of the 
news media need not work for an entity that is ``organized and 
operated'' to publish or broadcast news. Therefore, the definition of 
``representative of the news media'' is revised to remove the 
``organized and operated'' requirement. The definition of ``educational 
institution'' is revised to reflect the holding in Sack, 823 F.3d at 
688 that students who make FOIA requests in furtherance of their 
coursework or other school-sponsored activities may qualify under this 
requester category. Several examples are being added to help requesters 
understand the analysis that SBA will apply to determine whether a 
requester meets the criteria to be considered an educational 
institution.
    Paragraph (d) ``Charging fees,'' changes the current fee schedule 
that SBA uses for search and review which is currently at a rate of $30 
per hour, to $46 per hour for professional staff (GS-9 to GS-14) and 
$83 per hour for managerial staff (GS-15 and above) to be consistent 
with other Federal Agency costs. Because these and similar changes are 
consistent with current regulations and describe current processes, SBA 
does not expect that they will result in significant additional costs 
for the government or the public. Paragraph (d)(1)(iii), which 
discusses direct costs associated with conducting any search that 
requires the creation of a new computer program. This change is 
intended to improve comprehension and to more accurately describe the 
circumstances under which a requester may be charged for a computerized 
search or a search of electronic records. It does not represent a 
change in practice, as SBA currently charges direct costs for 
specialized data searches.
    Paragraph (e) addresses restrictions on charging fees when the 
FOIA's time limits are not met and is revised to reflect changes made 
to those restrictions by the FOIA Improvement Act of 2016. 
Specifically, these changes reflect that agencies may not charge search 
fees (or duplication fees for representatives of the news media and 
educational/non-commercial scientific institution requesters) when the 
agency fails to comply with the FOIA's time limits. The restriction on 
charging fees is excused and the agency may charge fees as usual when 
it satisfies one of three exceptions detailed at 5 U.S.C. 
552(a)(4)(A)(viii)(II).
    This rule also revises paragraph (l), which addresses the 
requirements for a waiver or reduction of fees, to specify that 
requesters may seek a waiver of fees and to streamline and simplify the 
description of the factors to be considered by components when making 
fee waiver determinations. These updates do not substantively change 
the analysis, but instead present the factors in a way that is clearer 
to both components and requesters. Rather than six factors, the amended 
section provides for three overall factors. Specifically, a requester 
should be granted a fee waiver if the requested information (1) sheds 
light on the activities and operations of the government; (2) is likely 
to contribute significantly to public understanding of those operations 
and activities; and (3) is not primarily in the commercial interest of 
the requester. This streamlined description facilitates easier 
understanding and application of the statutory standard.
    Again, because these changes are consistent with current 
regulations and case law which describe current processes, SBA does not 
expect that they will result in significant additional costs for the 
government or the public. Finally, this section is amended to include a 
chart showing fee applicability, for ease of reference.
    Section 102.9 (Administrative appeals) is revised to extend the 
time to file an administrative appeal to 90 days, in conformity with 
the 90-day minimum time period established by the FOIA Improvement Act 
of 2016. This section is also revised to include a new paragraph 
regarding engaging in dispute resolution services provided by OGIS.
    Section 102.10 (Preservation of records) outlines SBA 
responsibilities maintaining records responsive to FOIA requests in 
accordance with 44 U.S.C. or the General Records Schedule 14 of the 
National Archives and Records Administration.
    102.11 (Subpoenas), formerly at 102.10, the text of this section 
remains the same as before.
    Appendix A is added to list the type of records that SBA typically 
releases or withholds.
    SBA is issuing this direct final rule to amend its procedures for 
disclosure and production of information under the Freedom of 
Information Act (5 U.S.C. 552) (FOIA), which are in 13 CFR part 102, 
subpart A.
    Since these are conforming amendments, with no extraneous 
interpretation or other expanded materials, SBA expects no significant 
adverse comments. Based on that fact, SBA has decided to proceed with a 
direct final rule giving the public 30 days to comment. If SBA receives 
a significant adverse comment during the comment period, SBA will 
withdraw the rule, and proceed with a new rule.

Compliance With Executive Orders 12866, 12988, 13132, 13563, 13771, the 
Regulatory Flexibility Act (5 U.S.C. 601-612), and the Paperwork 
Reduction Act (44 U.S.C. Ch. 35)

Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
direct final rule does not constitute a significant regulatory action 
under

[[Page 46371]]

Executive Order 12866. This direct final rule is also not a major rule 
under the Congressional Review Act, 5 U.S.C. 800.

Executive Order 12988

    This action meets applicable standards set forth in Sections 3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden. The action does not 
have retroactive or preemptive effect.

Executive Order 13132

    For purposes of Executive Order 13132, SBA has determined that this 
direct final rule will not have any substantial, direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, for the purpose of Executive 
Order 13132, Federalism, SBA has determined that this direct final rule 
has no federalism implications warranting the preparation of a 
federalism assessment.

Executive Order 13563

    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the nation's regulatory system 
to promote predictability, to reduce uncertainty, and to use the best, 
most innovative, and least burdensome tools for achieving regulatory 
ends. The executive order directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. SBA developed this rule in 
a manner consistent with these requirements with guidance provided by 
the Department of Justice, Office of Information Policy.

Executive Order 13771

    This rule is not an Executive Order 13771, Reducing Regulation and 
Controlling Regulatory Costs, regulatory action because this rule is 
not significant under Executive Order 12866.

Regulatory Flexibility Act, 5 U.S.C. 601-612

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, requires 
administrative agencies to consider the effect of their action on small 
entities, including small businesses. According to the RFA, when an 
agency issues a rule, the agency must prepare an analysis to determine 
whether the impact of the rule will have significant economic impact on 
a substantial number of small entities. However, section 605 of the RFA 
allows an agency to certify a rule in lieu of preparing an analysis, if 
the rulemaking is not expected to have a significant impact on a 
substantial number of small entities. SBA has determined that this 
direct final rule will not have a significant economic impact on a 
substantial number of small entities. 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. Within the meaning of RFA, SBA certifies that this 
direct final rule will not have a significant economic impact on a 
substantial number of small entities.

Paperwork Reduction Act, 44 U.S.C. Ch. 35

    SBA has determined that this direct final rule does not impose 
additional reporting or recordkeeping requirements under the Paperwork 
Reduction Act, 44 U.S.C. Chapter 35.

List of Subjects in 13 CFR Part 102

    Freedom of information, Privacy.
    Accordingly, for the reasons set forth in the preamble, the U.S. 
Small Business Administration is amending 13 CFR part 102 as follows:

PART 102--[AMENDED]

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

    Authority:  5 U.S.C. 301, 552, 552a; 31 U.S.C. 3717, 9701; 44 
U.S.C. 3501.

0
2. Subpart A is revised to read as follows:
Subpart A--Disclosure of Information
Sec.
102.1 General provisions.
102.2 Proactive disclosure of records.
102.3 Requirements pertaining to the submission of requests.
102.4 Responsibility for responding to requests.
102.5 Timing of responses to requests.
102.6 Responses to requests.
102.7 Confidential commercial information.
102.8 Fees.
102.9 Administrative appeals.
102.10 Preservation of records.
102.11 Subpoenas.
Appendix A to Subpart A--Records Maintained by SBA

Subpart A--Disclosure of Information


Sec.  102.1   General provisions.

    (a) This subpart contains the rules that SBA follows in processing 
requests for records under the Freedom of Information Act (``FOIA''), 5 
U.S.C. 552. The rules in this subpart should be read in conjunction 
with the text of the FOIA and the Uniform Freedom of Information Fee 
Schedule and Guidelines published by the Office of Management and 
Budget (``OMB Guidelines''). Requests made by individuals for records 
about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are 
processed under subpart B of this part as well as under this subpart.
    (b) As referenced in this subpart, ``component'' means each 
separate bureau, office, division, district office, regional office, 
area office, service center, loan processing center or central office 
duty location within the SBA that is responsible for processing FOIA 
requests. See appendix A to this subpart for a list of information 
generally exempt from disclosure. For contact information for each 
office visit https://www.sba.gov/foia and for a detailed description of 
the function of each office to help ascertain the types of records 
maintained by each component, please visit https://www.sba.gov/about-sba. The rules described in this regulation that apply to SBA also 
apply to its components.
    (c) The SBA has a decentralized system for processing requests, 
with each component handling requests for its records.
    (d) The term record means:
    (1) Any information that would be an agency record subject to the 
requirements of this section when maintained by SBA in any format, 
including written or electronic format; and
    (2) Any information described under paragraph (d)(1) of this 
section that is maintained for SBA by an entity under Government 
contract, for purposes of records management.


Sec.  102.2  Proactive disclosure of records.

    Records that are required by the FOIA to be made available for 
public inspection in an electronic format may be accessed through the 
SBA's Web site at https://www.sba.gov/foia. Each component of SBA is 
responsible for determining which of its records are required to be 
made publicly available, as well as for identifying additional records 
of interest to the public that are appropriate for public disclosure, 
and for posting and indexing such records. Each component shall ensure 
that its Web site of posted records and indices is reviewed and updated 
on an ongoing basis. Each component has a FOIA Public Liaison who can 
assist individuals in locating records

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particular to a component. A list of the SBA's FOIA Public Liaisons is 
available at https://www.sba.gov/foia.


Sec.  102.3  Requirements pertaining to the submission of requests.

    (a) General information. (1) The SBA has a decentralized system for 
responding to FOIA requests, with each component handling requests for 
its records. All components have the capability to receive requests 
electronically either through email or a web portal. To make a request 
for records, a requester should write directly to the Freedom of 
Information/Privacy Acts (FOI/PA) Office by mail to 409 3rd St SW., 
Washington, DC 20416 or submit a fax to 202-205-7059 or email to 
foia@sba.gov. Requesters may also submit their request through the FOIA 
online portal at https://foiaonline.regulations.gov/foia/action/public/home. Additional information for submitting a request to SBA is listed 
at https://www.sba.gov/foia. However, a request will receive the 
quickest possible response if it is addressed to the component that 
maintains the records sought.
    (2) A requester who is making a request for records about himself 
or herself must comply with the verification of identity provision set 
forth in subpart B of this part. The Certification of Identity form, 
available at https://www.justice.gov/oip/forms/cert_ind.pdf, may be used 
by individuals who are making requests for records pertaining to 
themselves.
    (3) Where a request for records pertains to another individual, a 
requester may receive greater access by submitting either a notarized 
authorization signed by that individual or a declaration made in 
compliance with the requirements set forth in 28 U.S.C. 1746 by that 
individual authorizing disclosure of the records to the requester, or 
by submitting proof that the individual is deceased (e.g., a copy of a 
death certificate or an obituary). As an exercise of administrative 
discretion, each component can require a requester to supply additional 
information if necessary in order to verify that a particular 
individual has consented to disclosure.
    (b) Description of records sought. Requesters must describe the 
records sought in sufficient detail to enable agency personnel to 
locate them with a reasonable amount of effort. To the extent possible, 
requesters should include specific information that may help the 
component in identifying the requested records, such as the date, title 
or name, author, recipient, subject matter of the record, case number, 
file designation, reference number, the timeframe for which the records 
are sought, the office that created the records, or any other 
information that will assist the component in locating documents 
responsive to the request. Before submitting their requests, requesters 
may contact the component's FOIA Contact or FOIA Public Liaison to 
discuss the records they are seeking and to receive assistance in 
describing the records. If, after receiving a request, a component 
determines that the request does not adequately describe the records 
sought, the component will inform the requester what additional 
information is needed or why the request is otherwise insufficient. The 
component will also notify the requester that it will not be able to 
comply with their request unless the additional information it has 
requested is received from them in writing within 20 working days after 
the component has requested it. If this type of notification is 
received, a requester may wish to discuss it with the FOIA Public 
Liaison. If the component does not receive a written response 
containing the additional information within 20 working days after it 
has been requested, the SBA will presume that the requester is no 
longer interested in the records and will close the file on the 
request. Requesters who are attempting to reformulate or modify such a 
request may discuss their request with the component's designated FOIA 
Contact or its FOIA Public Liaison, or a representative of the FOI/PA 
Office, each of whom is available to assist the requester in reasonably 
describing the records sought. If a request does not reasonably 
describe the records sought, the SBA's response to the request may be 
delayed.
    (c) Form or format. Requests may specify the preferred form or 
format (including electronic formats) for the records sought. The SBA 
will accommodate the request if the record is readily reproducible in 
that form or format.
    (d) Contact information. Requesters must provide contact 
information, such as their phone number, email address, and mailing 
address, to assist the SBA in communicating with the requester and 
providing the released records.


Sec.  102.4   Responsibility for responding to requests.

    (a) In general. Except in the instances described in paragraphs (c) 
and (d) of this section, the component that first receives a request 
for a record and maintains that record is the component responsible for 
responding to the request. In determining which records are responsive 
to a request, a component ordinarily will include only records in its 
possession as of the date that it begins its search. If any other date 
is used, the component shall inform the requester of that date. A 
record that is excluded from the requirements of the FOIA pursuant to 5 
U.S.C. 552(c) is not considered responsive to a request.
    (b) Authority to grant or deny requests. The head of a component, 
or designee, is authorized to grant or to deny any requests for records 
that are maintained by that component.
    (c) Re-routing of misdirected requests. Where a component 
determines that a request was misdirected within the SBA, the receiving 
component shall route the request to the proper component(s).
    (d) Consultation, referral, and coordination. When reviewing 
records located by a component in response to a request, the component 
shall determine whether another component of SBA or another agency of 
the Federal Government is better able to determine whether the record 
is exempt from disclosure under the FOIA. As to any such record, the 
component shall proceed in one of the following ways:
    (1) Consultation. When records originated with the component 
processing the request, but contain within them information of interest 
to another component, agency, or other Federal Government office, the 
component processing the request should typically consult with that 
other component or agency prior to making a release determination.
    (2) Referral. (i) When the component processing the request 
believes that a different component, agency, or other Federal 
Government office is best able to determine whether to disclose the 
record, the component typically should refer the responsibility for 
responding to the request regarding that record, as long as the 
referral is to a component or agency that is subject to the FOIA. 
Ordinarily, the component or agency that originated the record will be 
presumed to be best able to make the disclosure determination. However, 
if the component processing the request and the originating component 
or agency jointly agrees that the former is in the best position to 
respond regarding the record, then the record may be handled as a 
consultation.
    (ii) Whenever a component refers any part of the responsibility for 
responding to a request to another component or agency, it shall 
document the referral, maintain a copy of the record that it refers, 
and notify the requester of the referral and inform the requester of 
the name(s) of the component or agency to

[[Page 46373]]

which the record was referred, including that component's or agency's 
FOIA Contact information.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the component or agency 
to which the referral would be made could harm an interest protected by 
an applicable exemption, such as the exemptions that protect personal 
privacy or national security interests. For example, if a non-law 
enforcement component responding to a request for records on a living 
third party locates within its files records originating with a law 
enforcement agency, and if the existence of that law enforcement 
interest in the third party was not publicly known, then to disclose 
that law enforcement interest could cause an unwarranted invasion of 
the personal privacy of the third party. Similarly, if a component 
locates within its files material originating with an Intelligence 
Community agency and the involvement of that agency in the matter is 
classified and not publicly acknowledged, then to disclose or give 
attribution to the involvement of that Intelligence Community agency 
could cause national security harms. In such instances, in order to 
avoid harm to an interest protected by an applicable exemption, the 
component that received the request should coordinate with the 
originating component or agency to seek its views on the disclosure of 
the record. The release determination for the record that is the 
subject of the coordination should then be conveyed to the requester by 
the component that originally received the request.
    (e) Classified information. On receipt of any request involving 
classified information, the component shall determine whether the 
information is currently and properly classified and take appropriate 
action to ensure compliance. Whenever a request involves a record 
containing information that has been classified or may be appropriate 
for classification by another component or agency under any applicable 
executive order concerning the classification of records, the receiving 
component shall refer the responsibility for responding to the request 
regarding that information to the component or agency that classified 
the information, or that should consider the information for 
classification. Whenever a component's record contains information that 
has been derivatively classified (for example, when it contains 
information classified by another component or agency), the component 
shall refer the responsibility for responding to that portion of the 
request to the component or agency that classified the underlying 
information.
    (f) Agreements regarding consultations and referrals. Components of 
SBA may establish agreements with other components of SBA or other 
Federal agencies to eliminate the need for consultations or referrals 
with respect to particular types of records.
    (g) Timing of responses to consultations and referrals. All 
consultations and referrals received by the SBA will be handled 
according to the date that the FOIA request initially was received by 
the first component or agency.


Sec.  102.5  Timing of responses to requests.

    (a) In general. Components ordinarily will respond to requests 
according to their order of receipt. In instances involving misdirected 
requests that are re-routed pursuant to Sec.  102.4(c), the response 
time will commence on the date that the request is received by the 
proper component's office that is designated to receive requests, but 
in any event not later than 10 working days after the request is first 
received by any component's office that is designated by these 
regulations to receive requests.
    (b) Multitrack processing. All components will designate a specific 
track for requests that are granted expedited processing, in accordance 
with the standards set forth in paragraph (e) of this section. A 
component may also designate additional processing tracks that 
distinguish between simple and more complex requests based on the 
estimated amount of work or time needed to process the request. Among 
the factors that may be considered are the number of records requested, 
the number of pages involved in processing the request and the need for 
consultations or referrals. Components shall advise requesters of the 
track into which their request falls and, when appropriate, should 
offer the requester an opportunity to narrow or modify the request so 
that it can be placed in a different processing track.
    (c) Unusual circumstances. Whenever the statutory time limit for 
processing a request cannot be met because of ``unusual 
circumstances,'' as defined in the FOIA, and the component extends the 
time limit on that basis, the component shall, before expiration of the 
20-working day period to respond, notify the requester in writing of 
the unusual circumstances involved and of the date by which the 
component estimates processing of the request will be completed. Where 
the extension exceeds 10 working days, the component shall, as 
prescribed by the FOIA, provide the requester with an opportunity to 
modify the request or to arrange an alternative time period for 
processing the original or modified request. The component shall make 
available its designated FOIA Contact or its FOIA Public Liaison for 
this purpose. The component must also alert requesters to the 
availability of the Office of Government Information Services (OGIS) to 
provide dispute resolution services.
    (d) Aggregating requests. For the purposes of determining unusual 
circumstances under the FOIA, components may aggregate requests in 
cases where it reasonably appears that multiple requests, submitted 
either by a requester or by a group of requesters acting in concert, 
constitute a single request that would otherwise involve unusual 
circumstances. Components shall not aggregate multiple requests that 
involve unrelated matters.
    (e) Expedited processing. (1) Requests and appeals shall be 
processed on an expedited basis whenever it is determined that they 
involve:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by a person who is primarily 
engaged in disseminating information.
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exist possible questions about the government's integrity that 
affect public confidence.
    (2) A request for expedited processing may be made at any time. 
Requests based on paragraphs (e)(1)(i) through (iii) of this section 
must be submitted to the component that maintains the records 
requested. When making a request for expedited processing of an 
administrative appeal, the request should be submitted to the FOI/PA 
Office. Requests for expedited processing that are based on paragraph 
(e)(1)(iv) of this section must be submitted to the component 
processing the request. A component that receives a misdirected request 
for expedited processing under the standard set forth in paragraph 
(e)(1)(iv) of this section shall forward it immediately to the FOI/PA 
Office for its determination. The time period for making the 
determination on the request for expedited processing under paragraph 
(e)(1)(iv) of this section shall commence

[[Page 46374]]

on the date that the FOI/PA Office receives the request, provided that 
it is routed within 10 working days.
    (3) A requester who seeks expedited processing must submit a 
notarized statement, such as an affidavit or declaration, certified to 
be true and correct, explaining in detail the basis for making the 
request for expedited processing. For example, under paragraph 
(e)(1)(ii) of this section, a requester who is not a full-time member 
of the news media must establish that the requester is a person whose 
primary professional activity or occupation is information 
dissemination, though it need not be the requester's sole occupation. 
Such a requester also must establish a particular urgency to inform the 
public about the government activity involved in the request--one that 
extends beyond the public's right to know about government activity 
generally. The existence of numerous articles published on a given 
subject can be helpful in establishing the requirement that there be an 
``urgency to inform'' the public on the topic. As a matter of 
administrative discretion, the SBA may waive the formal certification 
requirement.
    (4) A component shall notify the requester within 10 working days 
of the receipt of a request for expedited processing of its decision 
whether to grant or deny expedited processing. If expedited processing 
is granted, the request must be given priority, placed in the 
processing track for expedited requests, and must be processed as soon 
as practicable. If a request for expedited processing is denied, any 
appeal of that decision shall be acted on expeditiously.


Sec.  102.6   Responses to requests.

    (a) In general. Components should, to the extent practicable, 
communicate with requesters having access to the Internet using 
electronic means, such as email or web portal.
    (b) Acknowledgments of requests. A component shall acknowledge the 
request in writing and assign it an individualized tracking number. 
Components shall include in the acknowledgment a brief description of 
the records sought to allow requesters to more easily keep track of 
their requests.
    (c) Estimated dates of completion and interim responses. Upon 
request, components shall provide an estimated date by which they 
expect to provide a response to the requester. If a request involves a 
voluminous amount of material, or searches in multiple locations, the 
SBA or component may provide interim responses, releasing the records 
on a rolling basis.
    (d) Grants of requests. Once a component determines it will grant a 
request in full or in part, it will notify the requester in writing. 
The component shall inform the requester of any fees charged under 
Sec.  102.8 and shall disclose the requested records to the requester 
promptly upon payment of any applicable fees. The component must inform 
the requester of the availability of its FOIA Public Liaison to offer 
assistance.
    (e) Adverse determinations of requests. A component making an 
adverse determination denying a request in any respect shall notify the 
requester of that determination in writing. Adverse determinations, or 
denials of requests, include denials involving fees or fee waiver 
matters, denials of requests for expedited processing, and decisions 
where:
    (1) The requested record is exempt, in whole or in part;
    (2) The request does not reasonably describe the records sought;
    (3) The information requested is not a record subject to the FOIA;
    (4) The requested record does not exist, cannot be located, or has 
been destroyed; or
    (5) The requested record is not readily reproducible in the form or 
format sought by the requester.
    (f) Content of denial. The denial must be signed by the head of the 
component or designee and must include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied by the component in denying the request;
    (3) An estimate of the volume of any records or information 
withheld, such as the number of pages or some other reasonable form of 
estimation, although such an estimate is not required if the volume is 
otherwise indicated by deletions marked on records that are disclosed 
in part or if providing an estimate would harm an interest protected by 
an applicable exemption;
    (4) A statement that the denial may be appealed under Sec.  102.9, 
and a description of the appeal requirements; and
    (5) A statement notifying the requester of the assistance available 
from the component's FOIA Public Liaison or designee, and the dispute 
resolution services offered by OGIS.
    (g) Markings on released documents. Records disclosed in part must 
be marked clearly to show the amount of information deleted and the 
exemption under which the deletion was made unless doing so would harm 
an interest protected by an applicable exemption.


Sec.  102.7   Confidential commercial information.

    (a) Definitions. For purposes of this section:
    Confidential commercial information means commercial or financial 
information obtained by the SBA from a submitter that may be protected 
from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
    Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides information, either directly or 
indirectly to the Federal Government.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, either at the time of submission or 
within a reasonable time thereafter, any portion of its submission that 
it considers to be protected from disclosure under Exemption 4. These 
designations shall expire 10 years after the date of the submission 
unless the submitter requests and provides justification for a longer 
designation period.
    (c) When notice to submitters is required. (1) A component shall 
promptly provide written notice to a submitter of confidential 
commercial information whenever records containing such information are 
requested under the FOIA if, after reviewing the request, the 
responsive records, and any appeal by the requester, the component 
determines that it may be required to disclose the records, provided:
    (i) The requested information has been designated in good faith by 
the submitter as information considered protected from disclosure under 
Exemption 4; or
    (ii) The component has a reason to believe that the requested 
information may be protected from disclosure under Exemption 4, but has 
not yet determined whether the information is protected from disclosure 
under that exemption or any other applicable exemption.
    (2) The notice shall either describe the commercial information 
requested or include a copy of the requested records or portions of 
records containing the information. In cases involving a voluminous 
number of submitters, notice may be made by posting or publishing the 
notice in a place or manner reasonably likely to accomplish it.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of this section shall not apply if:

[[Page 46375]]

    (1) The component determines that the information is exempt under 
the FOIA;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous, except that, in such a case, 
the component shall give the submitter written notice of any final 
decision to disclose the information and must provide that notice 
within a reasonable number of days prior to a specified disclosure 
date.
    (e) Opportunity to object to disclosure. (1) A component shall 
specify a reasonable time period within which the submitter must 
respond to the notice referenced above. If the submitter has any 
objections to disclosure, it should provide the component a detailed 
written statement that specifies all grounds for withholding the 
particular information under any exemption of the FOIA. In order to 
rely on Exemption 4 as the basis for nondisclosure, the submitter must 
explain why the information constitutes a trade secret or commercial or 
financial information that is privileged or confidential.
    (2) A submitter who fails to respond within the time period 
specified in the notice shall be considered to have no objection to 
disclosure of the information. Information received by the component 
after the date of any disclosure decision shall not be considered by 
the component. Any information provided by a submitter under this 
subpart may itself be subject to disclosure under the FOIA.
    (f) Analysis of objections. A component shall consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose the requested information.
    (g) Notice of intent to disclose. Whenever a component decides to 
disclose information over the objection of a submitter, the component 
shall provide the submitter written notice, which shall include:
    (1) A statement of the reasons why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.


Sec.  102.8   Fees.

    (a) In general. Components shall charge for processing requests 
under the FOIA in accordance with the provisions of this section and 
with the OMB Guidelines. In order to resolve any fee issues that arise 
under this section, a component may contact a requester for additional 
information. Components shall ensure that searches, review, and 
duplication are conducted in the most efficient and the least expensive 
manner. A component ordinarily will collect all applicable fees before 
sending copies of records to a requester. Requesters must pay fees by 
check or money order made payable to the Small Business Administration, 
addressed to the component assessing the fee.
    (b) Categories of requesters. Different fees are assessed depending 
on the requester category. Requesters may seek a fee waiver. Requests 
for fee waivers will be considered in accordance with the requirements 
in paragraph (l) of this section. For purposes of assessing fees, the 
FOIA establishes four categories of requesters:
    (1) Commercial use requesters;
    (2) Non-commercial scientific/educational institutions requesters;
    (3) News media requesters, and;
    (4) All other requesters.
    (c) Definitions. For purposes of this section:
    (1) Commercial use request is a request that asks for information 
for a use or a purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests through 
litigation. A component's decision to place a requester in the 
commercial use category will be made on a case-by-case basis based on 
the requester's intended use of the information.
    (2) Direct costs are those expenses that the SBA incurs in 
searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records in order to respond to a FOIA request. For 
example, direct costs include the salary of the employee performing the 
work (i.e., the basic rate of pay for the employee, plus 16 percent of 
that rate to cover benefits) and the cost of operating computers and 
other electronic equipment, such as photocopiers and scanners. Direct 
costs do not include overhead expenses such as the costs of space, and 
of heating or lighting a facility. This will be in addition to search, 
review, and duplication fees, and shall be paid by requesters 
categorized as commercial and other.
    (3) Duplication is reproducing a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, audiovisual materials, or electronic 
records, among others.
    (4) Educational institution is any school that operates a program 
of scholarly research. A requester in this fee category must show that 
the request is made in connection with his or her role at the 
educational institution. Components may seek verification from the 
requester that the request is in furtherance of scholarly research and 
will advise requesters of their placement in this category.
    Example 1 to paragraph (c)(4). A request from a professor of 
geology at a university for records relating to soil erosion, written 
on letterhead of the Department of Geology, would be presumed to be 
from an educational institution.
    Example 2 to paragraph (c)(4). A request from the same professor of 
geology seeking drug information from the Food and Drug Administration 
in furtherance of a murder mystery he is writing would not be presumed 
to be an institutional request, regardless of whether it was written on 
institutional stationery.
    Example 3 to paragraph (c)(4). A student, who makes a request in 
furtherance of their coursework or other school-sponsored activities 
and provides a copy of a course syllabus or other reasonable 
documentation to indicate the research purpose for the request, would 
qualify as part of this fee category.
    (5) Noncommercial scientific institution is an institution that is 
not operated on a ``commercial'' basis, as defined in paragraph (c)(1) 
of this section 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 requester in this 
category must show that the request is authorized by and is made under 
the auspices of a qualifying institution and that the records are 
sought to further scientific research and are not for a commercial use.
    (6) Representative of the news media is any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities include 
television or radio stations that broadcast ``news'' to the public at 
large and publishers of periodicals that disseminate ``news'' and make 
their products available

[[Page 46376]]

through a variety of means to the general public, including news 
organizations that disseminate solely on the Internet. A request for 
records supporting the news-dissemination function of the requester 
will not be considered to be for a commercial use. ``Freelance'' 
journalists who demonstrate a solid basis for expecting publication 
through a news media entity will be considered as a representative of 
the news media. A publishing contract would provide the clearest 
evidence that publication is expected; however, a requester's past 
publication record will be considered in making a determination.
    (7) Review is the examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time 
spent both obtaining and considering any formal objection to disclosure 
made by a confidential commercial information submitter under Sec.  
102.7, but it does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    (8) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records and the 
reasonable efforts expended to locate and retrieve information from 
electronic records.
    (d) Charging fees. In responding to FOIA requests, components will 
charge the following fees unless a waiver or reduction of fees has been 
granted under paragraph (l) of this section. Because the fee amounts 
provided below already account for the direct costs associated with a 
given fee type, components will not add any additional costs to charges 
calculated under this section.
    (1) Search. (i) Requests made by educational institutions, 
noncommercial scientific institutions, or representatives of the news 
media are not subject to search fees. Search fees shall be charged for 
all other requesters, subject to the restrictions of paragraph (e) of 
this section. Components may properly charge for time spent searching 
even if they do not locate any responsive records or if they determine 
that the records are entirely exempt from disclosure.
    (ii) For each hour spent by personnel searching for requested 
records, including electronic searches that do not require new 
programming, the fees will be charged as follows: Professional (GS 9-
14)--$46; and managerial (GS 15 and above)--$83.
    (iii) Requesters shall be charged the direct costs associated with 
conducting any search that requires the creation of a new computer 
program to locate the requested records. Requesters shall be notified 
of the costs associated with creating such a program and must agree to 
pay the associated costs before the costs may be incurred.
    (iv) For requests that require the retrieval of records stored by 
SBA at a Federal Records Center operated by the National Archives and 
Records Administration (NARA), additional costs shall be charged in 
accordance with the Transactional Billing Rate Schedule established by 
NARA.
    (2) Duplication. Duplication fees will be assessed to all 
requesters, subject to the restrictions of paragraph (e) of this 
section. A component shall honor a requester's preference for receiving 
a record in a particular form or format where it can be readily 
reproduced in the form or format requested. Where photocopies are 
supplied, SBA will provide one copy per request at the cost of $.10 per 
page. For copies of records produced on tapes, disks, or other media, 
SBA will charge the direct costs of producing the copy, including 
operator time. Where paper documents must be scanned in order to comply 
with a requester's preference to receive the records in an electronic 
format, the requester must also pay the direct costs associated with 
scanning those materials. For other forms of duplication, components 
shall charge the direct costs.
    (3) Review. (i) Review fees will be assessed to requesters who make 
commercial use requests. Review fees will be assessed in connection 
with the initial review of the record, i.e., the review conducted by a 
component to determine whether an exemption applies to a particular 
record or portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, if a particular exemption is deemed to no longer apply, 
any costs associated with SBA's re-review of the records in order to 
consider the use of other exemptions may be assessed as review fees. 
Review fees will be charged at the same rates as those charged for a 
search under paragraph (d)(1)(ii) of this section.
    (ii) The following table summarizes the fees for each type of 
requester.

                                    Table 1 to Sec.   102.8--Summary of Fees
----------------------------------------------------------------------------------------------------------------
        Requester category                Search                Review           Duplication fees   Direct costs
----------------------------------------------------------------------------------------------------------------
Commercial Use...................  Yes.................  Yes.................  Yes................  Yes.
Educational/Noncommercial          No..................  No..................  Yes (first 100       No.
 Scientific Institutions.                                                       pages, or
                                                                                equivalent volume
                                                                                free).
News Media.......................  No..................  No..................  Yes (first 100       No.
                                                                                pages, or
                                                                                equivalent volume
                                                                                free).
All Others.......................  Yes (first 2 hours    No..................  Yes (first 100       Yes.
                                    free).                                      pages, or
                                                                                equivalent volume
                                                                                free).
----------------------------------------------------------------------------------------------------------------

    (e) Restrictions on charging fees. (1) When a component determines 
that a requester is an educational institution, non-commercial 
scientific institution, or representative of the news media, and the 
records are not sought for commercial use, it will not charge search 
fees.
    (i) If a component fails to comply with the time limits in which to 
respond to a request, it may not charge search fees, or, in the 
instances of requests from requesters described in paragraph (c)(1) of 
this section, may not charge duplication fees, except as described in 
paragraphs (d)(1)(ii) through (iv) of this section.
    (ii) If a component has determined that unusual circumstances as 
defined by the FOIA apply and SBA provided timely written notice to the 
requester in accordance with the FOIA, a failure to comply with the 
time limit shall be

[[Page 46377]]

excused for an additional 10 working days.
    (iii) If a component has determined that unusual circumstances, as 
defined by the FOIA, apply and more than 5,000 pages are necessary to 
respond to the request, the component may charge search fees, or, in 
the case of requesters described in paragraph (c)(1) of this section, 
may charge duplication fees, if the following steps are taken. The 
component shall provide a timely written notice of unusual 
circumstances to the requester in accordance with the FOIA and SBA must 
have discussed with the requester via written mail, email, or telephone 
(or made not less than three good-faith attempts to do so) how the 
requester could effectively limit the scope of the request in 
accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is 
satisfied, the component may charge all applicable fees incurred in the 
processing of the request.
    (iv) If a court has determined that exceptional circumstances 
exist, as defined by the FOIA, a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
    (2) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (3) Except for requesters seeking records for a commercial use, 
components shall provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (4) No fee will be charged when the total fee, after deducting the 
100 free pages (or its cost equivalent) and the first two hours of 
search, is equal to or less than $46.00.
    (f) Notice of anticipated fees in excess of $46.00. (1) When a 
component determines or estimates that the fees to be assessed in 
accordance with this section will exceed $46.00, the component shall 
notify the requester of the actual or estimated amount of the fees, 
including a breakdown of the fees for search, review, or duplication, 
unless the requester has indicated a willingness to pay fees as high as 
those anticipated. If only a portion of the fee can be estimated 
readily, the component shall advise the requester accordingly. If the 
request is not for noncommercial use, the notice will specify that the 
requester is entitled to the statutory entitlements of 100 pages of 
duplication at no charge and, if the requester is charged search fees, 
two hours of search time at no charge, and will advise the requester 
whether those entitlements have been provided.
    (2) In cases in which a requester has been notified that the actual 
or estimated fees are in excess of $46.00, the request shall not be 
considered received and further work will not be completed until the 
requester commits in writing to pay the actual or estimated total fee, 
or designates some amount of fees the requester is willing to pay, or 
in the case of a noncommercial use requester who has not yet been 
provided with the requester's statutory entitlements, designates that 
the requester seeks only that which can be provided by the statutory 
entitlements. The requester must provide the commitment or designation 
in writing, and must, when applicable, designate an exact dollar amount 
the requester is willing to pay. Components are not required to accept 
payments in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the component estimates that the total 
fee will exceed that amount, the component will toll the processing of 
the request when it notifies the requester of the estimated fees in 
excess of the amount the requester has indicated a willingness to pay. 
The component shall inquire whether the requester wishes to revise the 
amount of fees the requester is willing to pay or modify the request. 
Once the requester responds, the time to respond will resume from where 
it was at the date of the notification.
    (4) Components shall make available their FOIA Public Liaison or 
other designee to assist any requester in reformulating a request to 
meet the requester's needs at a lower cost.
    (g) Charges for other services. Although not required to provide 
special services, if a component chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
will be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same 
document, or sending records by means other than first class mail.
    (h) Charging interest. Components may charge interest on any unpaid 
bill starting on the 31st day following the date of billing the 
requester. Interest charges will be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the billing date until payment is 
received by the component. Components shall follow the provisions of 
the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as 
amended, and its administrative procedures, including the use of 
consumer reporting agencies, collection agencies, and offset.
    (i) Aggregating requests. When a component reasonably believes that 
a requester or a group of requesters acting in concert is attempting to 
divide a single request into a series of requests for the purpose of 
avoiding fees, the component may aggregate those requests and charge 
accordingly. Components may presume that multiple requests of this type 
made within a 30-day pe