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.

Rules and Regulations Federal Register

46369 

Vol. 82, No. 192 

Thursday, October 5, 2017 

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. 

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: http:// 

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 http://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 

§ 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, 


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refer, or coordinate with another 

component and/or agency. 

Section 102.5 (Timing of responses to 

requests) formerly § 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 


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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] 

■ 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. 

■ 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 

§ 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. 

§ 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. 

§ 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 http://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. 

§ 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 


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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 nonlaw 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. 

§ 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 § 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 


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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. 

§ 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 § 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 § 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. 

§ 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: 


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(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. 

§ 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 


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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 § 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 § 102.8—SUMMARY OF FEES

Requester category Search Review Duplication fees Direct costs 

Commercial Use ...................................... Yes .................................... Yes .............. Yes .......................................................... Yes. 

Educational/Noncommercial Scientific Institutions.No ...................................... No ................ Yes (first 100 pages, or equivalent volume free).No. 

News Media ............................................ No ...................................... No ................ Yes (first 100 pages, or equivalent volume free).No. 

All Others ................................................ Yes (first 2 hours free) ...... No ................ Yes (first 100 pages, or equivalent volume free).Yes. 

(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 


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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 period 

have been made in order to avoid fees. 

For requests separated by a longer 

period, components shall aggregate 

them only where there is a reasonable 

basis for determining that aggregation is 

warranted in view of all the 

circumstances involved. Multiple 

requests involving unrelated matters 

cannot be aggregated. 

(j) Advance payments. (1) For requests 

other than those described in 

paragraphs (j)(2) or (j)(3) of this section, 

components cannot require the 

requester to make an advance payment 

before work is commenced or continued 

on a request. Payment owed for work 

already completed (i.e., payment before 

copies are sent to a requester) is not an 

advance payment. 

(2) When a component determines or 

estimates that a total fee to be charged 

under this section will exceed $250.00, 

it may require that the requester make 

an advance payment up to the amount 

of the entire anticipated fee before 

beginning to process the request. 

Components may elect to process the 

request prior to collecting fees when it 

receives a satisfactory assurance of full 

payment from a requester with a history 

of prompt payment. 

(3) Where a requester has previously 

failed to pay a properly charged FOIA 

fee to any component or SBA within 30 

working days of the billing date, a 

component may require that the 

requester pay the full amount due, plus 

any applicable interest on that prior 

request, and the component may require 

that the requester make an advance 

payment of the full amount of any 

anticipated fee before SBA begins to 

process a new request or continues to 

process a pending request or any 

pending appeal. When a component has 

a reasonable basis to believe that a 

requester has misrepresented the 

requester’s identity in order to avoid 

paying outstanding fees, it may require 

that the requester provide proof of 

identity. 

(4) In cases in which advanced 

payment is required, the request will 

not be considered received and further 

work will not be completed until the 

required payment is received. If the 

requester does not pay the advance 


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payment within 30 working days after 

the date of the fee determination, the 

request will be closed. 

(k) Other statutes specifically 

providing for fees. The fee schedule of 

this section does not apply to fees 

charged under any statute that 

specifically requires SBA to set and 

collect fees for particular types of 

records. In instances where records 

responsive to a request are subject to a 

statutorily-based fee schedule program, 

the requester will be informed of the 

contact information for that program. 

(l) Requirements for waiver or 

reduction of fees. (1) Requesters may 

seek a waiver of fees by submitting 

written correspondence demonstrating 

how disclosure of the requested 

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. 

Records responsive to a request shall be 

furnished without charge or at a 

reduced rate below the rate established 

under paragraph (d) of this section, 

where a component determines, based 

on all available information, that the 

requester has demonstrated that: 

(i) Disclosure of the requested 

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 

(ii) Disclosure of the information is 

not primarily in the commercial interest 

of the requester. 

(2) Components shall furnish records 

responsive to a request without charge 

or at a reduced rate when it determines, 

based on all available information, that 

the factors described in paragraphs 

(l)(2)(i) through (iii) of this section are 

satisfied: 

(i) Disclosure of the requested 

information would shed light on the 

operations or activities of the 

government. The subject of the request 

must concern identifiable operations or 

activities of the Federal Government 

with a connection that is direct and 

clear, not remote or attenuated. 

(ii) Disclosure of the requested 

information is likely to contribute 

significantly to public understanding of 

those operations or activities. This 

factor is satisfied when the following 

criteria are met: 

(A) Disclosure of the requested 

records must be meaningfully 

informative about government 

operations or activities. The disclosure 

of information that already is in the 

public domain, in either the same or a 

substantially identical form, would not 

be meaningfully informative if nothing 

new would be added to the public’s 

understanding. 

(B) The disclosure must contribute to 

the understanding of a reasonably broad 

audience of persons interested in the 

subject, as opposed to the individual 

understanding of the requester. A 

requester’s expertise in the subject area 

as well as the requester’s ability and 

intention to effectively convey 

information to the public must be 

considered. Components shall presume 

that a representative of the news media 

will satisfy this consideration. 

(iii) The disclosure must not be 

primarily in the commercial interest of 

the requester. To determine whether 

disclosure of the requested information 

is primarily in the commercial interest 

of the requester, the following criteria 

will be considered: 

(A) Identify whether the requester has 

any commercial interest that would be 

furthered by the requested disclosure. A 

commercial interest includes any 

commercial, trade, or profit interest. 

Requesters must be given an 

opportunity to provide explanatory 

information regarding this 

consideration. 

(B) If there is an identified 

commercial interest, a determination 

will be made whether the primary 

interest is furthered by the request. A 

waiver or reduction of fees is justified 

when the requirements of paragraphs 

(l)(2)(i) and (ii) of this section are 

satisfied and any commercial interest is 

not the primary interest furthered by the 

request. Ordinarily there will be a 

presumption, that when a news media 

requester has satisfied factors (l)(2)(i) 

and (ii) of this section, the request is not 

primarily in the commercial interest of 

the requester. Disclosure to data brokers 

or others who merely compile and 

market government information for 

direct economic return will not be 

presumed to primarily serve the public 

interest. 

(3) Where only some of the records to 

be released satisfy the requirements for 

a waiver of fees, a waiver must be 

granted for those records. 

(4) Requests for a waiver or reduction 

of fees should be made when the request 

is first submitted and should address 

the criteria referenced above. A 

requester may submit a fee waiver 

request at a later time so long as the 

underlying record request is pending or 

on administrative appeal. When a 

requester who has committed to pay 

fees subsequently asks for a waiver of 

those fees and that waiver is denied, the 

requester must pay any costs incurred 

up to the date the fee waiver request 

was received. 

§ 102.9 Administrative appeals. 

(a) Requirements for making an 

appeal. A requester may appeal any 

adverse determinations to the FOI/PA 

Office. The contact information is 

contained in § 102.3(a)(1). Examples of 

adverse determinations are provided in 

§ 102.6(e). The requester must make the 

appeal in writing and to be considered 

timely it must be postmarked, or in the 

case of electronic submissions, 

transmitted, within 90 working days 

after the date of the response. The 

appeal should clearly identify the 

component’s determination that is being 

appealed and the assigned request 

number. To facilitate handling, the 

requester should mark both the appeal 

letter and envelope, or subject line of 

the electronic transmission, ‘‘Freedom 

of Information Act Appeal.’’ 

(b) Adjudication of appeals. (1) The 

Chief, FOI/PA or designee will act on 

behalf of the SBA on all appeals under 

this section. 

(2) An appeal ordinarily will not be 

adjudicated if the request becomes a 

matter of FOIA litigation. 

(3) On receipt of any appeal involving 

classified information, the FOI/PA 

Office shall take appropriate action to 

ensure compliance with Executive 

Orders 13467 and 13526. 

(c) Decisions on appeals. A decision 

on an appeal will be made in writing. 

A decision that upholds a component’s 

determination will contain a statement 

that identifies the reasons for the 

affirmance, including any FOIA 

exemptions applied. The decision will 

provide the requester with notification 

of the statutory right to file a lawsuit 

and will inform the requester of the 

mediation services offered by OGIS as a 

non-exclusive alternative to litigation. If 

a component’s decision is remanded or 

modified on appeal, the requester will 

be notified of that determination in 

writing. The component will thereafter, 

further process the request in 

accordance with that appeal 

determination and respond directly to 

the requester. 

(d) Time limit for issuing appeal 

decision. The statutory time limit for 

responding to appeals is generally 20 

working days after receipt. However, the 

Appeals Officer may extend the time 

limit for responding to an appeal 

provided the circumstances set forth in 

5 U.S.C. 552(a)(6)(B)(i) are met. 

(e) Engaging in dispute resolution 

services provided by OGIS. Mediation is 

a voluntary process. If a component 

agrees to participate in the mediation 

services provided by OGIS, it will 

actively engage as a partner to the 

process in an attempt to resolve the 

dispute. 


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Federal Register / Vol. 82, No. 192 / Thursday, October 5, 2017 / Rules and Regulations 46379 

(f) When an appeal is required. Before 

seeking review by a court of a 

component’s adverse determination, a 

requester generally must first submit a 

timely administrative appeal. 

§ 102.10 Preservation of records. 

Each component shall preserve all 

correspondence pertaining to the 

requests that it receives under this 

subpart, as well as copies of all 

requested records, until disposition or 

destruction is authorized pursuant to 

title 44 of the United States Code or the 

General Records Schedule 14 of the 

National Archives and Records 

Administration. Records shall not be 

disposed of or destroyed while they are 

the subject of a pending request, appeal, 

or lawsuit under the FOIA. 

§ 102.11 Subpoenas. 

(a) The person to whom the subpoena 

is directed must consult with SBA 

counsel in the relevant SBA office, who 

will seek approval for compliance from 

the Associate General Counsel for 

Litigation. Except where the subpoena 

requires the testimony of an employee 

of the Inspector General’s office, or 

records within the possession of the 

Inspector General, the Associate General 

Counsel may delegate the authorization 

for appropriate production of 

documents or testimony to local SBA 

counsel. 

(b) If SBA counsel approves 

compliance with the subpoena, SBA 

will comply. 

(c) If SBA counsel disapproves 

compliance with the subpoena, SBA 

will not comply, and will base such 

noncompliance on an appropriate legal 

basis such as privilege or a statute. 

(d) SBA counsel must provide a copy 

of any subpoena relating to a criminal 

matter to SBA’s Inspector General prior 

to its return date. 

Appendix A to Subpart A of Part 102— 

Records Maintained by SBA 

I. Information Generally Exempt From 

Disclosure 

a. Non-statistical information on pending, 

declined, withdrawn, or canceled 

applications. 

b. Non-statistical information on defaults, 

delinquencies, losses etc. 

c. Loan status, other than charged-off or 

paid-in-full. 

d. Home disaster loan status and interest 

rate. 

e. Financial statements, credit reports, 

business plans, plant lay-outs, marketing 

strategy, advertising plans, fiscal projections, 

pricing information, payroll information, 

private sector experience and contracts, IRS 

forms, purchase information, banking 

information, corporate structure, research 

plans and client list of applicant/recipient. 

f. Portions of: Certificate of Competency 

records, Requests for Size Determinations, 

8(a) Business Development Plans, loan 

applications, SBIC applications, loan officer’s 

reports. 

g. Internal documents not incorporated 

into final Agency action, pending internal 

recommendations on applications for 

assistance, SBA/attorney-client 

communications, pending litigation 

documents and investigatory documents. 

Discretionary disclosure policy must be 

utilized. 

h. Personal history and financial 

statements, tax forms, resumes, all nongovernment career experience, 

communications regarding applicant’s 

character, home addresses and telephone 

numbers, social security numbers, birth dates 

and medical records. Portions of Inspector 

General (IG) reports, audit reports, program 

investigation records and any other records 

which, if released, would interfere with the 

Government’s law enforcement proceedings 

and/or would reveal the identity of a 

confidential source and documents relating 

to pending litigation and investigations. 

Requests for IG documents must be referred 

to the Office of the Inspector General, 

Counsel Division. 

i. Financial information on portfolio 

companies. 

j. Information originating from other 

agencies should be referred to those agencies 

for disclosure determinations. 

II. Information Generally Disclosed 

a. Names and business addresses of 

recipients of approved loans, SBIC licenses, 

Certificates of Competency, lease guarantees, 

surety bond guarantees and requests for 

counseling. 

b. Names of officers, directors, 

stockholders or partners of recipient firms. 

c. Kinds and amounts of loans, loan terms, 

interest rates (except on home disaster loans), 

maturity dates, general purpose, etc. 

d. Statistical data on assistance, loans, 

defaults, contracts, counseling, etc. 

e. Decisions, rulings and records showing 

final Agency actions in specific factual 

situations if identifying details exempt from 

disclosure are first deleted. 

f. Awarded contracts: names, amounts, 

dates, contracting agencies. 

g. Identity of participating banks. 

h. List of 8(a) participants, date of entry, 

FPPT dates and NAICS codes. 

i. OHA opinions and decisions. 

j. Names of SBA employees, grades, titles, 

and duty stations. 

Linda E. McMahon, 

Administrator. 

[FR Doc. 2017–21204 Filed 10–4–17; 8:45 am] 

BILLING CODE 8025–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2017–0034; Product 

Identifier 2016–NE–32–AD; Amendment 39– 

19063; AD 2017–20–06] 

RIN 2120–AA64 

Airworthiness Directives; Honeywell 

International Inc. Turbofan Engines 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: We are adopting a new 

airworthiness directive (AD) for certain 

Honeywell International Inc. 

(Honeywell) AS907–1–1A turbofan 

engines. This AD was prompted by 

reports of loss of power due to failure 

of the second stage low-pressure turbine 

(LPT2) blade. This AD requires a onetime inspection of the LPT2 blades and, 

if the blades fail the inspection, the 

replacement of the blades with a part 

eligible for installation. We are issuing 

this AD to address the unsafe condition 

on these products. 

DATES: This AD is effective November 9, 

2017. 

The Director of the Federal Register 

approved the incorporation by reference 

of a certain publication listed in this AD 

as of November 9, 2017. 

ADDRESSES: For service information 

identified in this final rule, contact 

Honeywell International Inc., 111 S 34th 

Street, Phoenix, AZ 85034–2802; phone: 

800–601–3099; Internet: https://

myaerospace.honeywell.com/wps/ 

portal. You may view this service 

information at the FAA, Engine and 

Propeller Standards Branch, 1200 

District Avenue, Burlington, MA 01803. 

For information on the availability of 

this material at the FAA, call (781) 238– 

7125. It is also available on the internet 

at http://www.regulations.gov by 

searching for and locating Docket No. 

FAA–2017–0034. 

Examining the AD Docket 

You may examine the AD docket on 

the Internet at http://

www.regulations.gov by searching for 

and locating Docket No. FAA–2017– 

0034; or in person at the Docket 

Management Facility between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. The AD docket 

contains this final rule, the regulatory 

evaluation, any comments received, and 

other information. The address for the 

Docket Office (phone: 800–647–5527) is 

Document Management Facility, U.S. 


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