AGENCY:
U.S. Small Business Administration.
ACTION:
Proposed rule.
SUMMARY:
The Small Business Administration (SBA) proposes to amend its regulations implementing the Freedom of Information Act (FOIA). This amendment is necessary to implement the Electronic Freedom of Information Act Amendments of 1996 (EFOIA) and to update SBA's FOIA regulations to conform to current law and procedure. SBA's amended regulations will make more information available electronically, allow requesters to obtain rapid disclosure decisions, give SBA more time to respond to some requests, and increase processing fees to more accurately reflect the full cost of search and document review. SBA presents the changes in a simple user-friendly format.
DATES:
Comments must be received on or before November 12, 2002.
ADDRESSES:
Written comments should be addressed to Lisa J. Babcock, Chief, Freedom of Information/Privacy Acts Office, Small Business Administration, 409 3rd Street, SW., Suite 5900, Washington, DC 20416 or via the Internet at: foia@sba.gov.
FOR FURTHER INFORMATION CONTACT:
Kitty Higgins, Paralegal Specialist, Freedom of Information/Privacy Acts Office, 202-401-8203.
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:
The Electronic Freedom of Information Act Amendments of 1996 (EFOIA), 5 U.S.C. 552(a)(2), includes provisions authorizing or requiring agencies to promulgate regulations implementing certain of its requirements, including the tracking of Freedom of Information Act (FOIA) requests, 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, the requirements for reporting FOIA activities to the Department of Justice, and the cases in which an agency may extend the time within which it will respond to a FOIA request. EFOIA also includes provisions regarding the availability of documents in electronic form, the treatment of electronic records, and the establishment of “electronic reading rooms.” SBA proposes to amend its regulation implementing the FOIA, 13 CFR Part 102, Subpart A. The proposed amendments will revise SBA's FOIA regulations to comply with EFOIA and to reflect current SBA FOIA procedures and practices.
Section-by-Section Analysis
Proposed § 102.1, General provisions, provides that Subpart A of Part 102 describes the procedures SBA follows for responding to FOIA requests.
Proposed § 102.2, Public reading rooms, provides that SBA maintain physical and electronic reading rooms. SBA's electronic reading room is at http://www.sba.gov/library/.
Proposed § 102.3, Requirements for making requests, provides the procedures for the public to make a FOIA request to the SBA. The request must be in writing and be received by mail, fax or e-mail. The request will be considered “perfected” or accepted for processing when the records sought are described in sufficient detail to be found by an SBA employee with a reasonable amount of effort, the requester states how much he or she is willing to pay, and an advance payment is made if the estimated fees will exceed $250 or the requester owes SBA for past FOIA search fees. Past due charges and interest and the advance payment must be paid before the request is perfected. Records on an individual will only be released to a third party upon the written authorization of the individual whose records are sought. Privacy Act requests will be processed under Subpart B of Part 102 and not Subpart A.
Proposed § 102.4, Timing of responses to requests, provides for the timing of general, multitrack, and expedited processing for FOIA requests.
Section 102.4(a), provides that once a “perfected” request is received by the correct SBA office, that SBA will respond within 20 working days. However, this period can be extended for an additional 10 working days by an SBA office if: (1) The need arises to search for and collect the requested records from a field facility or other establishment separate from the processing office; (2) the need arises to search for, collect, and appropriately examine a voluminous amount of separate and distinct records demanded in a single request; or (3) the need arises for consultation with another Federal agency having a substantial interest in the determination of the request. When one of these reasons arises and requires an extension for more than 10 working days, SBA will notify the requester in writing that unusual circumstances exist and allow the requester an opportunity to modify the request so it can be processed within usual time limits.
Multitrack processing is covered in § 102.4(b), which provides for three-track processing. With multitrack processing, EFOIA recognizes that some requests do not lend themselves to a 20 working-day deadline. Therefore, EFOIA authorizes agencies to establish separate systems within the agency for handling simple and complex requests. Requests on each track will be processed in the order received. Under multitrack processing, requests are categorized based on the amount of agency effort involved with processing the request. The first track, “fast track,” is for simple requests clearly identified that have been previously released or placed in an SBA Reading Room, that can be processed within 10 working days after receipt by the correct SBA office. The second track, “regular track,” is for requests of moderate complexity that are clearly identified, will be 50 pages or less, and will require less than two hours to review and process, that can be processed within 20 working days after receipt by the correct SBA office. The third track, “slow track,” is for requests involving unusual circumstances or high complexity, such as where the information is not clearly identified, will be more than 50 pages, will require more than two hours to review and process, or includes information originated by another Federal agency or a private concern whose consent must be obtained before release. Slow track requests should be processed within 30 working days after receipt by the correct SBA office.
Expedited processing is covered in § 102.4(c). SBA will provide expedited processing to requests and appeals if either the requester demonstrates that someone's life or physical safety is in imminent danger if SBA does not expedite its response to the request, or if a news media representative demonstrates an urgent need to inform the public about an actual or alleged Federal government activity. After the requester provides a written statement explaining, in detail, the circumstances of the compelling need for the expedited processing, SBA will notify the requester within 10 working days of its decision whether or not to grant expedited processing. If granted, the request will take priority and be processed as soon as practicable. If denied, an appeal may be submitted and would be acted on expeditiously.
Multiple requests are covered in § 102.4(d). When an SBA office believes that multiple requests submitted by a requester or group of collaborating requesters constitute a single request that would otherwise involve unusual circumstances, and the requests involve clearly related matters, such requests will be aggregated for processing.
Proposed § 102.5, Responses to requests, provides that SBA will notify the requester in writing how SBA will respond to each request. SBA will release the requested documents, or explain why SBA will not release some or all of the requested documents citing applicable FOIA exemptions and describing the amount of material redacted or deleted and explain how to appeal the decision. In addition, SBA will bill for the actual fee, less any advance payments made. SBA will also refer a request for records generated by another Federal agency to that agency for proper processing.
Proposed § 102.6, Fees, provides that SBA will charge fees of $.10 per page for photocopy duplication and the actual cost for other duplication methods. SBA will also charge a search and review fee of $30/employee hour. This section also defines relevant terms, such as “direct costs,” “search,” “duplication,” “review,” “commercial use request,” “educational institution,” “noncommercial scientific institution,” “representative of the news media,” and “member of the general public.” SBA will also charge interest on unpaid bills starting on the 31st day following the date of billing at the maximum rate allowed under 31 U.S.C. 3717. Fee waivers and reductions, discussed in § 102.6(c), may be allowed when a requester can show that disclosure of 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.
Proposed § 102.7, Business information, defines “business information” and “submitter” and provides that such information will only be disclosed under the procedures in this section. These procedures are similar to those in current SBA FOIA rules at 13 CFR § 102.6, How will SBA respond to requests for business information?
Proposed § 102.8, Appeals, provides for the procedures to appeal an SBA adverse determination denying a requester's FOIA request. These procedures are similar to those in current SBA FOIA rules at 13 CFR § 102.9, How may I appeal a denial of my request for information or a fee determination?
Proposed § 102.9, Public index, provides information about SBA's officially issued documents. This information is similar to that in current SBA FOIA rules at 13 CFR § 102.10, How can I get the Public Index of SBA materials?
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 proposed 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
For the reasons stated in the preamble, SBA proposes to amend title 13 of the Code of Federal Regulations (CFR) as follows:
PART 102—RECORD DISCLOSURE AND PRIVACY
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.
2. Subpart A of part 102 is revised to read as follows:
- Subpart A—Disclosure of Information
- 102.1
- General provisions.
- 102.2
- Public reading rooms.
- 102.3
- Requirements for making 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
This subpart describes the procedures that the SBA follows for responding to requests made under the Freedom of Information Act (FOIA) (5 U.S.C. 552).
(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 in adjudicating a case,
(2) Official non-privileged policy statements, opinions, or interpretations,
(3) Standard operating procedures affecting a member of the public,
(4) Records SBA has released in response to previous FOIA requests if SBA has determined those records will be or have been requested again, and
(5) A list of previously released records.
(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.
(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 FOI/PA Office by mail to 409 3rd St., SW., Washington, DC 20416 or fax to 202-205-7059 or e-mail to foia@sba.gov. The office receiving your request will forward it to the correct office. The correct office will consider your request “perfected” only when you provide the following:
(1) You must describe the records sought in enough detail for an Agency employee to locate the records with a reasonable amount of effort;
(2) State how much you are willing to pay; 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 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, your request must include an authorization signed by that person, allowing SBA to release proprietary information pertaining to that person.
(c) To make a Privacy Act request for records about yourself, you must follow the procedures detailed in § 102.34(b) of subpart B.
(a) In general. Once the correct office receives your “perfected” 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
(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) When an extension is for more than ten working days, the office shall provide the requester written notice that “unusual circumstances” exist and allow the requester an opportunity to modify the request so it may be processed within the usual time limits.
(c) Multitrack processing. (1) If an office receives so many requests that it cannot respond to all within 30 working days, it may use two or more processing tracks by distinguishing between simple and complex requests based on the amount of work and/or time needed to process the request, including limits based on the number of pages involved. The office shall advise requesters in its slower track of the limits of its faster track. Requests on each track should be processed in the order received.
(2) An office using multitrack processing may provide requesters in its slower track with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of the office's faster track.
(i) Fast track: if the information is clearly identified and has been previously released or placed in a Reading Room, the request could be processed within 10 working days after it is received by the correct office.
(ii) Regular track: if the information is clearly identified, is 50 pages or less, and requires less than two hours to review and process, the request could be processed within 20 working days after it is received by the correct office.
(iii) Slow track: if the information is not clearly identified, is more than 50 pages, requires more than two hours to review and process, is maintained in more than one SBA office, or includes information which originated at another agency or a private concern whose consent must be obtained before release, the request should be processed within 30 working days after it is received by the correct office.
(d) 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 13 CFR § 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. The correct SBA office will notify you within 10 working days of their decision whether or not to grant expedited processing. When expedited processing is granted, the request shall be given priority and processed as soon as practicable. When an expedited processing request is denied, an appeal may be submitted and would be acted on expeditiously.
(e) 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.
Within the time limits described in § 102.4 of this subpart, SBA will notify you in writing how SBA will comply with your request. SBA's response will state one or more of the following:
(a) 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 describing the amount of material deleted (except where describing the amount deleted would harm an interest protected by the exemption), and explain how to appeal that decision.
(c) Bill you for the actual fee, less any advance payment you have made. If part of the fee remains unpaid, SBA will bill you for the remainder and advise you that SBA will not provide any records until you either: (1) Pay the bill, if it is more than $250; or
(2) Promise in writing to pay the bill, if it is $250 or less.
(d) SBA will refer your request for records generated by another federal agency to that agency for proper processing.
(a) In general. SBA will charge fees for processing requests as outlined in this section. An office shall collect all applicable fees before sending copies of releasable records. 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 requesters, reviewing) documents in response to a 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. 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 § 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 as defined in paragraph (b)(5) 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. 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
(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. 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 above. SBA will charge requesters in this category search time after the first two hours and duplication after the first 100 pages.
(10) 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.
(11) 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.
(c) 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 in § 102.6(c).
(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. Designations will expire ten years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period.
(d) Disclosure. SBA will disclose, upon request, business information that has previously been released to the general public.
(e) 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 the notice in a place reasonably likely to accomplish it.
(f) Opportunity to object to disclosure. SBA will give the submitter five working days to submit a detailed written statement specifying all grounds upon which disclosure is opposed. The statement must show why the information is a trade secret or commercial or financial information that is privileged or confidential. If a submitter fails to respond to the notice within the five working days, SBA will presume that the submitter has no objection to disclosure of the information. Information provided by a submitter under this paragraph may itself be subject to disclosure under the FOIA.
(g) Notice of intent to disclose. SBA will consider a submitter's objections and specific grounds for nondisclosure. If SBA decides to disclose business information over the objection of a submitter, SBA will give the submitter written notice, telling the submitter when and what it intends to disclose.
(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 45 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 denied, the reason(s) a fee should be waived, or the reason(s) a request should be expedited. You must identify the denying 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) SBA will decide your appeal in writing within 20 working days from the date of its receipt. SBA may take an additional 10 working days if unusual circumstances require.
(f) 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.
(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 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: August 20, 2002.
Hector V. Barreto,
Administrator.
[FR Doc. 02-22932 Filed 9-10-02; 8:45 am]
BILLING CODE 8025-01-P