§ 102.2 Scope.

(a) This part applies to all files, documents, records, and information obtained or produced by officers and employees of SBA in the course of their official duties as well as all files, documents, records, and other information in the custody or control of any SBA officer or employee. It does not purport to describe or set forth every Agency file, document, record, or item of information which may or may not be disclosed or to incorporate every exemption from disclosure provided by law. Material described is illustrative rather than exclusive.

(b) Moreover, this part deals with the availability of information to the public, including parties involved in litigation affecting the Agency. It does not apply to the disclosure of information to persons, organizations, or institutions participating in SBA programs or activities, or to other activities in the executive and legislative branches of the Federal Government.

§ 102.3

Information and records available to the public and exempt from disclosure.

(a) General. (1) All SBA information and records in existence which are not exempt by law are available for public inspection and copying in, or through, facilities described in § 102.4. In addition, certain materials technically qualifying for exemption from disclosure are to be made available where disclosure would not adversely affect some legitimate public or private interest, would not otherwise violate law or other authority, and would not impose an unreasonable burden on SBA. Reasonable requests for material not in existence may also be honored where their compilation will not unduly interfere with SBA activities and programs.

(2) SBA National Directive 1250-2, "Disclosure of Information," which is available in the facilities described in § 102.4, sets forth in detail the information, records, and other data which are, or may be, available to the public as well as those exempt from disclosure. Specific examples of information routinely available in SBA facilities are listed in § 102.4. Examples of information and other materials, available and exempt, in which there should be general interest are discussed in succeeding paragraphs of this section.

(b) Information and records relating to SBA assistance programs. (1) Although SBA assistance programs typically involve the consideration of material constituting in large part trade secrets, commercial or financial information, information submitted in confidence, or information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, the following kinds of information are nevertheless available to the public:

(i) Names of recipients of loans, small business investment company licenses, certificates of competency, grants, and other assistance.

(ii) The kind and amount of assistance.

(iii) The purpose of the approved assistance in general terms.

(iv) The extent of outside participation, if any.

(v) Statistical programs.

data on assistance

(vi) Decisions, rulings, and records showing Agency actions in specific factual situations where identifying details exempt from disclosure may be effectively deleted.

(2) Information which is not available to the public includes:

(i) Information other than statistical on declined, withdrawn, or canceled applications for assistance.

(ii) Financial or other confidential information about applicants or borrowers obtained from any source.

(iii) Individual case files relating to such activities as loans, licenses, size determinations, facilities inventory, prime and subcontracting, and Service Corps of Retired Executives (SCORE).

(iv) Internal Agency communications showing, for example, recommendations on applications for assistance.

(v) Information concerning losses, delinquencies and defaults in individual cases.

(vi) Names of participating lending institutions without their consent.

(vii) Information regarding the character of applicants, borrowers, or other persons.

(viii) Financial reports of small business investment companies.

(ix) Examination, audit, investigation, and litigation reports.

(c) Opinion digest-(1) Description. This Digest which is available for inspection and copying in the facilities de

scribed in § 102.4, is largely a compilation of selected advisory legal opinions involving specific facts and specific parties. As such they do not necessarily reflect final Agency opinions, interpretations, or decisions in any given cases. Moreover, the opinions are based on authority in effect at the time the opinions were rendered and such authority may no longer be controlling because of a change in law, regulation, or other directive pertaining to the matter. They do, however, provide guides to the reasoning utilized in analyzing given problems and questions which may have widespread implications and are made available to the public primarily on this basis rather than as authoritative statements of continuing precedent.

(2) Identifying details omitted. Identifying details have been omitted in most cases to avoid the possibility of violations of 18 U.S.C. 1905 which imposes criminal penalties for the disclosure of trade secrets, financial data, and other confidential information. Also avoided is the disclosure of other information exempt from disclosure, for example, information submitted to the Agency in confidence or which would constitute a clearly unwarranted invasion of privacy. Absence of identifying details has no bearing or effect on the general public and does not affect the validity of the opinion disclosed.

(d) Size decisions. Agency determinations of the size status of business concerns resulting from appeals to the Size Appeals Board, as provided in Part 121 of this chapter, have been summarized and indexed on cards available for inspection and copying in the facilities described in § 102.4. Complete decisions will be available on request but, in cases which contain trade secrets, commercial or financial information, or other confidential information, after deletion of identifying details.

(e) Minutes of the Loan Policy Board. These are available for inspection and copying in the Washington reading room as provided in § 102.4. The Loan Policy Board was terminated by Reorganization Plan No. 4 of 1965, effective July 27, 1965, and its functions transferred to the SBA Administrator. Despite the Board's abolition, policies adopted by the Board remain in effect until affirmative action by the Administrator changes them. The

minutes provide guides to the reasons for such policies. Part 120 of this chapter contains a statement of SBA's loan policies.

(f) Personnel and similar files. The names, position titles, grades, salaries, and duty stations of SBA employees are public information but their home addresses are not so considered. The disclosure of private or personal information contained in other Agency files, for example, in the files relating to members of SBA advisory boards, committees, or councils and Service Corps of Retired Executives (SCORE) and to applicants for SBA assistance would normally amount to a clearly unwarranted invasion of privacy and thus would be considered exempt.

(g) Agency staff directives and other instructions to staff. All directives are considered public information except those relating to audits and investigations, internal financial management and fiscal operations, and portions of directives containing confidential standards and instructions, as, for example, instructions concerning negotiations or bargaining in connection with the disposition and liquidation of loans and loan collateral held by SBA.

(h) Litigation materials. Copies of pleadings, motions, orders, transcripts of testimony, and documentary evidence introduced in pending or closed litigation are available once such items are a matter of public record.

(i) Internal communications. Interagency or intraagency communications not routinely available to a party to litigation with SBA are exempt from disclosure. These would include, among other things, drafts, memoranda between officials or agencies, opinions and interpretations prepared by SBA attorneys and other staff members or consultants for use of the Agency (except as made available in the Opinion Digest referred to in paragraph (c) of this section), research studies performed internally or under contract for internal management purposes, and internal management reports.

§ 102.4 Public access to information and records.

(a) Facilities. SBA facilities are available to the public during normal business hours for requesting, inspecting and

copying information and records. Reproduction machines will also be available in, or through, such facilities.

(1) Washington Office. A public reading room is located in Room 100, 1441 L Street NW., Washington, D.C.

(2) Area and regional offices. The reception areas in SBA field offices will be utilized for public information requests. A list of these offices is included in Part 101 of this chapter or may be obtained by writing to the Small Business Administration, Washington, D.C. 20416.

(b) Materials available in Washington reading room and field office reception area facilities. (1) For the convenience of the public certain Agency materials will be maintained and readily available in these facilities. These will include:

(i) All SBA directives and manuals not exempt from disclosure.

(ii) SBA Rules and Regulations (including Interpretations).

(iii) Opinion Digest.

(iv) Size Index Cards which contain a summary of decisions resulting from appeals of small business size decisions to SBA's Size Appeals Board.

(v) Index of Agency materials, including lists of directives, forms, and reports. (2) The Washington reading room will, in addition to the above, have normally available, among other things:

(i) Minutes of the Loan Policy Board. (ii) Management and technical assistance publications issued on a free or for-sale basis, as listed on SBA Forms 115 A and B.

(iii) SBA's Annual Report to the President and the Congress.

(iv) SBIC Digest and policy and procedural releases sent to all small business investment companies.

(v) Press releases.

(vi) Final SBA decisions in formal administrative hearings.

(vii) Routine statistical reports on Agency activities.

(viii) Names of recipients of SBA assistance and related information not exempt from disclosure.

(ix) Pamphlets describing SBA programs.

(x) Blank SBA forms.

(c) Other materials. Requests for information, records, and other materials not readily available in the Washington reading room or field office reception areas may be requested through such facilities. Requests will be referred to the proper SBA office and the person

making the request will be notified of the availability of the material and any charges involved. If the material requested is the exclusive concern of another agency, the request will be referred to that agency. If the material is of concern to more than one agency, the request will be referred to the agency whose interest is paramount for a decision to disclose or withhold the material.

(d) Forms for requesting information. (1) SBA Form 774, "Request for SBA Forms, Documents, Records and Other Information" is used for processing requests. Any person desiring information or records may be asked to complete Part I of the form identifying the material requested and the copies, if any, desired. If requests are received by mail or telephone, Part I will be completed by SBA.

(2) SBA Form 778 is a form letter or notice which will advise the requester of the availability of the material, any charges involved, or the referral of the request to another office or agency.

(3) SBA Form 772 will be used to record transactions involving charges and a copy thereof will serve as a receipt to the purchaser.

(a) Who may appeal. Any person whose request for information or records has been denied shall be entitled to submit a written appeal to the Agency.

(b) Form of appeal. While no particular form is prescribed, the letter or other written statement utilized for such purpose shall contain a description of the information or record requested, the name and place of employment of the SBA official or employee who denied the request, the reason, if any, given for the denial, and such other pertinent facts and statements as the appellant may deem appropriate. SBA may request additional details where the information submitted is insufficient to support a decision.

(c) Where to appeal. Appeals shall be addressed to the Assistant Administrator for Administration, Small Business Administration, Washington, D.C. 20416.

(d) Agency decision. Final Agency decision on appeals from refusals to disclose information or records shall be made by the Assistant Administrator for Administration. He shall promptly review each appeal and provide appellant

(a) Basis. Factors taken into account in establishing fees for reproducing copies of documents, records search, and compilation of materials include reproduction cost, average salary of employees involved, and overhead cost.

(b) Method of payment. Remittances shall be in the form of cash or cashier's check, money order or other guaranteed remittance made payable to the Small Business Administration. Payment shall normally be due at the time the service is rendered. However, where extensive record searches or compilations are involved the person requesting the service shall pay whatever fee is estimated by SBA to be appropriate before any search or compilation is undertaken. Fees paid in advance shall be held in suspense pending completion of the search or compilation and adjusted when final charges have been determined.

(c) Prices. (1) For documents available in the Washington reading room and in reception areas in SBA field offices, the charge for reproduction will be 25 cents per page.

(2) For requests requiring a search of SBA records but no compilation, there will be a minimum charge of $2 plus the regular charge of 25 cents per page for reproduction. In addition, the total charge will include a charge based upon employees' time requirea for the search.

(3) For information which has to be compiled the charge will include the cost of employees' time, cost of computer runs or other equipment use, and other overhead expense. Since there is no obligation on the part of the Agency to compile records or data, requests for compilations must be reasonable and not unduly interfere with normal SBA operations or program activities.

(4) Persons may inspect and copy documents by their own means in the SBA facilities without charge except for search or compilation charges which may be otherwise payable.

§ 102.7 Appearances and testimony by SBA officers and employees. Whenever an officer or employee of SBA is served with a subpoena demand

ing the disclosure of the information or the production of files, documents, and records described in this part, or is requested by any court, committee or other body to disclose such information, the officer or employee shall promptly inform his superior of the requirements of the subpoena or request and shall ask for instructions from the Assistant Administrator for Administration with respect thereto. Such officer or employee shall appear before the court, committee or body and, if the Assistant Administrator for Administration has not authorized disclosure, the employee shall respectfully decline to disclose the information or produce the files, documents and records demanded or requested, basing such refusal upon this part.

PART 103-APPEARANCES AND COMPENSATION OF PERSONS APPEARING BEFORE SBA

Sec.

103.13 Statutory provisions. 103.13-1 Purpose.

103.13-2

103.13-3

103.13-4

Definitions.

Appearance.

Suspension or revocation of the privilege to appear.

103.13-5 Interpretation of "good cause”. 103.13-6 Compensation allowable to agents. AUTHORITY: The provisions of this Part 103 issued under sec. 5, 72 Stat. 385; 15 U.S.C. 634.

SOURCE: The provisions of this Part 103 contained in Revision 1, 28 F.R. 3776, Apr. 18, 1963, unless otherwise noted.

§ 103.13 Statutory provisions.

SEC. 13. No loan shall be made or equipment, facilities, or services furnished by the Administration under this Act to any business enterprise unless the owners, partners, or officers of such business enterprise (1) certify to the Administration the names of any attorneys, agents, or other persons engaged by or on behalf of such business enterprise for the purpose of expediting applications made to the Administration for assistance of any sort, and the fees paid or to be paid to any such person; (2) execute an agreement binding any such business enterprise for a period of two years after any assistance is rendered by the Administration to such business enterprise, to refrain from employing, tendering any office or employment to, or retaining for professional services, any person who, on the date such assistance or any part thereof was rendered, or within one year prior thereto, shall have served as an officer, attorney, agent, or employee of the Administration occupying a position or engaging in ac

For purposes of this part:

(a) "Administrator" shall mean the Administrator of the Small Business Administration.

(b) "Agent" shall include attorneys, accountants, consultants, manufacturers' representatives, and any other persons acting in a representative capacity.

(c) The term “appear before SBA" shall include (1) the preparation or submission on behalf of an Applicant of applications for financial assistance, assistance from the Investment Division of SBA, and assistance in procurement and technical matters; (2) conferences or other communications on behalf of an Applicant with officers or employees of SBA; (3) participation on behalf of another in any matter before SBA.

(d) "Applicant" shall mean any person, firm, concern, corporation, partnership, cooperative or other business enterprise applying or making application for, or receiving assistance from SBA. § 103.13-3 Appearance.

(a) Personal appearance. Any individual Applicant or member of an Applicant partnership may appear for himself or for such partnership, and any Applicant corporation may be represented by a bona fide officer of the corporation.

(b) Appearance by agents. Any Applicant may appear before SBA by an attorney at law admitted to practice and in good standing before any of the Federal courts of the United States or the highest court of any State or Territory of the United States, or by any competent person of good moral character and of good repute who is a citizen of the United States or who has declared his intention to become such citizen, if not prohibited by law or the regulations in this part from appearing before SBA in behalf of such Applicant.

(c) Evidence of agent's authority. SBA may request of any Agent written evidence of the nature and extent of his authority to act on behalf of an Applicant. SBA may refuse to reveal any information concerning any SBA assistance applied for or received by any Applicant to any person whose relationship with the Applicant is not clearly demonstrated in writing.

§ 103.13-4 Suspension or revocation of the privilege to appear.

The Administrator, for good cause (see § 103.13-5), may suspend, pending a hearing and decision, the privilege of any Applicant or Agent, to appear before SBA, and may also revoke such privilege of any Applicant or Agent, in accordance with procedures contained in Part 104 of this chapter.

§ 103.13-5 Interpretation of "good cause".

Section 103.13-4 provides that the Administrator, for good cause, may suspend or revoke the privilege of any Agent or Applicant to appear before SBA. "Good cause" as used in this conection will be deemed to mean any unlawful or unethical activity. The following acts would constitute "good cause"; these are illustrative only and "good cause" is not necessarily limited to the following:

(a) Inducement. Inducing or attempting to induce by gifts, or offer thereof, promises, bribes or otherwise, any officer or employee of SBA to take any action with respect to any matter before SBA.

(b) Solicitation. Requesting or suggesting directly or through any agency or medium, that an Applicant employ, either directly or indirectly, the person making or initiating the request or suggestion, or some other person, to perform work in connection with an application. "Solicitation" shall include, but shall not be limited to, requests or suggestions which are not justified by the personal relationship existing between the Applicant and such person or persons; requests or suggestions which violate the ethics, customs, or regulations of the profession or business of said person or persons; and requests or suggestions which imply or infer that the work to be performed, or any portion thereof will be of a political, influential, or similar nature.

(c) Fees or charges. Charging or proposing to charge for any services per