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is reviewed by SBA. On occasions, such as where the volume of activity has not been sufficient to require a full-time employee, or the area is too remote to economically use the services of a fulltime employee, SBA has hired fee counsel to represent it in business loans.

(b) Disaster loans. In disaster loans, as defined in Part 123 of this chapter, SBA often contracts for the services of fee counsel because the disaster presents an emergency and a volume of activity that cannot be promptly and economically serviced by the available full-time employees.

(c) Fish and wildlife. In fish and wildlife loans assigned to SBA by the Secretary of the Interior under 50 CFR 160.8, SBA has contracted with special admiralty fee counsel to assist in the closing and disbursement of such loans in order to assure compliance with the requirements of admiralty law. The limited number of fish and wildlife loans and their disbursement in widely dispersed areas make it more economical and expeditious for SBA to employ special admiralty fee counsel rather than full-time employees.

(d) Compensation. All work performed at the request of, and for, SBA is performed in compliance with its regulations and instructions, and is compensated for at an hourly rate determined by SBA and established in the contract between SBA and the fee counsel. The contract may be terminated upon written notice by either party.

(e) Duties. The fee counsel acts under the general supervision of the General Counsel through the Regional Counsel, and takes such action as is legally requisite and necessary for the making of loans under the provisions of the Small Business Act. In the event that fee counsel acts contrary to, or fails to act in accordance with SBA's Regulations and instructions, Regional Counsel may reassign the loan either to another fee counsel or to a full-time employee. In the performance of functions as an attorney for SBA the highest standards of professional conduct are requisite and proper. All matters of confidence proper to the attorney-client relationship are respected by fee counsel.

[23 F.R. 10508, Dec. 31, 1958]

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Fees.

102.6 102.7 Appearances and testimony by SBA officers and employees.

AUTHORITY: The provisions of this Part 102 issued under sec. 5, 72 Stat. 385; 15 U.S.C. 634.

SOURCE: The provisions of this Part 102 contained in Revision 1, 32 F.R. 9522, July 1, 1967, unless otherwise noted.

§ 102.1 Purpose and policy.

(a) This part establishes policy and procedures governing public access to information contained in the files, documents, and records of the Small Business Administration (SBA). In keeping with the spirit as well as the letter of Public Law 90-23, which codified and repealed Public Law 89-487, amending 5 U.S.C. 552, formerly section 3 of the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. 1002 (1964 Ed.), it reflects SBA policy that disclosure is the general rule rather than the exception. It is in addition a recognition that this policy in favor of disclosure extends in many instances to information technically exempt from disclosure under the law where such disclosure would not adversely affect some legitimate public or private interest intended to be protected by law, would not otherwise violate law or other authority, and would not impose an unreasonable burden upon SBA.

(b) This part is also a recognition that the soundness of many SBA programs, e.g., loans, licensing and financing of small business investment companies, and the issuance of certificates of competency as to the capacity and credit of small business concerns to perform Government contracts, depends in large measure upon the reliability of commercial, technical, financial and business information relating to the affairs of applicants for SBA assistance. Since the release of such information would jeop

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(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 described 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.

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(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 dis

close information or records shall be made by the Assistant Administrator for Administration. He shall promptly review each appeal and provide appellant and other interested parties, if any, with a written notification of the decision. If the decision upholds the refusal to disclose, the notification shall contain a statement sufficiently explaining the reasons for the refusal.

[Rev. 1, 32 F.R. 9522, July 1, 1967, as amended by Amdt. 1, 34 F.R. 7274, May 3, 1969; Amdt. 3, 36 F.R. 13029, July 13, 1971] § 102.6

Fees.

(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 required 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 subpena demanding 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 doby to disclose such information, the officer or employee shall promptly inform his superior of the requirements of the subpena or request and shall ask for instructions from the Assistant Administrator for Administration or the Deputy Assistant Administrator for Administration (Management) with respect thereto. Such officer or employee shall appear before the court, committee or body and, if the Assistant Administrator for Administration or the Deputy Assistant Administrator for Administration (Management) 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.

[Rev. 1, Amdt. 2, 36 F.R. 7657, Apr. 23, 1971]

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103.13-4 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 secs. 5, 13, 72 Stat. 385, 394; 15 U.S.C. 634, 642.

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

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