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 intra-agency communications not routinely available to a party in 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, which relate to the policymaking and decisional processes of the Agency and its officials. However, the exemption does not apply to nonexempt material contained in such communications if severable in such a way as not to compromise the policymaking and decisional processes intended to be protected by this exemption.

(j) Mailing lists. The Agency considers exempt from public disclosure as an unwarranted invasion of privacy mailing lists of its clientele, employees, advisory councils, and other persons and organizations involved or dealing with the Agency. The Agency will not distribute, sell, or otherwise make available the names and addresses of such persons and organizations for purposes of commercial or other solicitation not clearly in the public interest.

§ 102.4 Public access to information and records.

(a) Facilities. Facilities in SBA regional and district offices 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. The Washington, D.C. District Office facilities are available to members of the public in the District of Columbia Metropolitan Area and that office will make necessary referrals to the National Office in appropriate cases. 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. Addresses and telephone numbers of SBA offices are also included in the telephone directories for the many cities in which the offices are located.

(b) Materials routinely available in field office facilities. (1) For the convenience of the public certain Agency materials will be maintained and readily available in or through these facilities. These will include:

(i) All SBA directives, policy and procedural issuances, and other staff instructions not exempt from disclosure. (ii) SBA Rules and Regulations (including Interpretations).

(iii) Opinion Digest.

(iv) Digest of the Decisions of the Size Appeals Board which summarizes decisions resulting from appeals of small business size decisions to SBA's Size Appeals Board.

(v) Public Index of Agency materials and lists of directives, policy and procedural issuances, forms, and reports.

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

(2) Examples of other kinds of materials which, in addition to the above, may also be available, through the field office facilities or in the National Office:

(i) Minutes of the Loan Policy Board (National Office only).

(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 Reports to the President and the Congress.

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

(v) Press releases.

(vi) Routine statistical reports on Agency activities.

(vii) Pamphlets describing SBA programs.

(viii) Sample SBA forms.

(ix) Comments on proposed rulemaking received from the public (National Office only).

(c) Other materials. Requests for information, records, and other materials not readily available in the field office facilities 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 avail

ability 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) Identifiable records.-(1) Specificity required. Requests shall include a reasonably specific description of the particular record sought in order to facilitate its location. A request shall not be denied on the sole ground that the record has not been properly identified if the description and the knowledge Agency personnel have of the contents of their files, together enable the record to be located without unduly burdening the Agency.

requests. Requests

(2) Categorical calling for all records falling within a reasonably specific category shall be regarded as "identifiable records" if the Agency can reasonably determine which particular records come within the request, and can retrieve them without undue burden on its operations because of the staff time consumed or the resulting disruption of files. If the Agency determines that there is such an undue burden, the requester shall nevertheless have the opportunity to discuss his request with Agency staff in order to reduce it to manageable proportions.

(e) 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 1 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.

§ 102.5 Administrative appeal of refusal to disclose.

(a) Who may appeal. Any person whose request for information or records has been denied, or has not been

acted upon within a reasonable time, shall be entitled to submit a written appeal to the Agency. A request shall not have been acted upon within a reasonable time if a decision is not made within 20 working days of receipt of any such request, unless the Agency shall have notified the requester in writing that special circumstances warrant a more extended deadline.

(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 Congressional and Public Affairs, Small Business Administration, Washington, D.C. 20416.

(d) Nature of appeal. An appeal shall be deemed by SBA to constitute a request that the information or records sought are not exempt from disclosure under the law but, if exempt, that they should nevertheless be disclosed in accordance with the policy stated in § 102.1 (a).

(e) Agency decision. Final Agency decision on appeals from refusals to disclose information or records shall be made by the Assistant Administrator for Congressional and Public Affairs. 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 set forth the exemptions from disclosure under the Freedom of Information Act which form the basis of the decision. The notification shall also advise that judicial review is available on complaint to the district court of the United States in the district in which the appellant resides or has his principal place of business, or in which the Agency records are located.

compilation of materials include reproduction cost, average salary of employees involved, and overhead cost.

(b) Method of payment. Fees may be paid in cash, by personal check, or by other form of remittance suitable to SBA. 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 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 readily available in SBA facilities the charge for reproduction will be ten (10) 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 10 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.

(d) Waiver of fees. Fees will be waived when less than $1.00 or when it is in the public interest to do so. Such a waiver will be in the public interest, for example, when in the determination of the Agency the request will not impose an undue burden or expense upon it and the request is (1) from another Government organization, Federal, State or local; (2) for the purpose of obtaining information primarily for the benefit of the general public rather than for the primary benefit of the requester, as will be the case with certain requests from news media and from organizations engaged in a nonprofit activity designed for public safety, health, welfare, or education; (3) from employees and former employees seeking information from their own per

sonnel records; (4) from or on behalf of the defending party in connection with a proceeding against such party by the Federal Government; (5) from a lowincome person and the fee would impose a financial hardship.

§ 102.7

Appearances and testimony by SBA officers and employees.

Whenever an officer or employee of SBA is served with a subpoena 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 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 Congressional and Public Affairs with respect thereto. Such officer or employee shall appear before the court, committee or body and, if the Assistant Administrator 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.

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 activities

which the Administration shall have determined involve discretion with respect to the granting of assistance under this Act; and (3) furnish the names of lending institutions to which such business enterprise has applied for loans together with dates, amounts, terms, and proof of refusal.

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.

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 performed in connection with matters before SBA (as defiined in § 103.13-2(c) any fee contingent upon the granting of any benefit to the Applicant unless the amount of such fee bears a necessary and reasonable relationship to the services actually performed; any fee which is deemed by SBA to be unreasonable for the services actually performed; or the charging of any expenses which are not deemed by SBA to have been necessary in connection with the application. This provision will not be construed to limit the right of SBA to require the execution by any person of an agreement as to compensation for services rendered, or to be rendered, to Applicants in connection with any matter before SBA, as provided for in § 103.13-6.

(d) Violation of compensation agreement. Violation of any compensation agreement, provided for in § 103.13-6.

(e) Violations of rules or regulations. Knowingly violating or participating in the violation of any rules or regulations of SBA, including the making, or inducing of another to make, any false representations to influence or facilitate the granting of any benefit to Applicant, in violation of the Small Business Act, as amended, the Small Business Investment Act of 1958, or any rules or regulations issued thereunder.

(f) Lack of good moral character. A course of conduct, past or present, which indicates that the person challenged is lacking in integrity or decorum, or has no respect for law and order, or which indicates that the Agent might submit unreliable information or evidence to SBA in connection with matters on which he is employed.

will provide, among other things, (a) that if the amount of compensation charged for any such services shall not be deemed reasonable by SBA, such Agent will reduce the charge for such services to such amount as shall be deemed reasonable by SBA, and will not, directly or indirectly, charge or collect from the Applicant or any other person, for such services, any sum in excess of the amount deemed reasonable by SBA; (b) that if such Agent has heretofore collected from the Applicant, or any other person, as compensation for any such services any amount deemed unreasonable by SBA, such Agent will refund to Applicant or such other person such sums as are in excess of the amount deemed reasonable by SBA.

104.10 Reopening.

104.11 Immaterial mistakes. 104.12 Pending proceedings.

AUTHORITY: The provisions of this Part 104 issued under sec. 5, 72 Stat. 385; 15 U.S.C. 634.

SOURCE: The provisions of this Part 104 contained in Revision 1, 28 F.R. 3777, Apr. 18, 1963, unless otherwise noted.

§ 104.1 SBA forms for public use.

SBA forms used by the public when applying for or obtaining SBA assistance or when providing services for SBA are available in all field offices. See § 101.3-1. [37 F.R. 28895, Dec. 30, 1972]

(a) Service of notice. Notice of suspension or revocation of the privilege of Respondent to appear before SBA, signed by the Administrator, shall be served upon the Respondent in the following

manner:

(1) By delivering it to the Respondent personally; or

(2) By registered mail: Provided, That, if a Respondent shall have signed