[No title available]

[Federal Register Volume 74, Number 233 (Monday, December 7, 2009)]

[Unknown Section]

[Pages 64349-64353]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: X09-251207]

[[Page 64349]]

U.S. SMALL BUSINESS ADMINISTRATION (SBA)

Statement of Regulatory Priorities

Overview

The U.S. Small Business Administration's (SBA) mission is to maintain

and strengthen the Nation's economy by enabling the establishment and

viability of small businesses and by assisting in economic recovery of

communities after disasters. In order to accomplish this mission, SBA

focuses on improving the economic and regulatory environment for small

businesses, especially those in areas that have significantly higher

unemployment and lower income levels than the Nation's averages and

those in traditionally underserved markets. The agency also focuses on

providing timely, effective financial assistance to businesses -

including non-profit organizations, homeowners, and renters affected by

disasters.

SBA is committed to:

Working with its financial partners to improve small

businesses' access to capital through SBA's loan and

venture capital programs;

Providing technical assistance to small businesses through its

resource partners;

Increasing contracting and business opportunities for small

businesses;

Providing affordable, timely and easily accessible financial

assistance to businesses, homeowners and renters after a

disaster; and

Measuring outcomes, such as revenue growth, job creation,

business longevity, and recovery rate after a disaster, to

ensure that SBA's programs and services are delivered

efficiently and effectively.

SBA's regulatory actions reflect the goals and objectives of the agency

and are designed to provide the small business and residential

communities with the information and guidance they need to succeed as

entrepreneurs and restore their homes or other property after disaster.

In the coming year, SBA's regulatory priorities will focus on

increasing procurement opportunities for Women-Owned Small Business

Concerns (WOSBs). This proposed rule would further SBA's overall goal

to increase contracting and business opportunities for small businesses

by giving contracting officers the ability to restrict competition to

WOSBs in industries in which SBA has determined that WOSBs are

underrepresented and substantially underrepresented and where certain

threshold determinations are made by an agency.

In addition, SBA has prioritized changes to the regulations governing

the Section 8(a) Business Development (8(a) BD) and Small Disadvantaged

Business (SDB) programs, and to SBA's size determinations. The

amendments in this proposed rule will prevent large businesses as well

as other non-8(a) firms from being able to reap the benefits of sole

source contracts intended for tribally-owned or Alaska Native

Corporation-owned 8(a) Participants. The proposed rule will also

benefit eligible business by clarifying SBA's requirements, removing

confusion, and eliminating or easing restrictions that are unnecessary.

Finally, SBA will focus its regulatory priorities on reviewing and

updating its size standards for small businesses to ensure that SBA's

size standards are consistently evaluated using the latest available

data. In particular, SBA intends to publish three proposed rules to

revise the size standards for business in certain industries classified

under the North American Industry Classification System (NAICS): Retail

Trade Industry Sector; Accommodations and Food Services Industry

Sector; and Other Services Industry Sector, which include, for example,

repair and maintenance services, personal and laundry services, and

religious, grant making, civic, and professional services.

_______________________________________________________________________

SBA

-----------

PROPOSED RULE STAGE

-----------

158. 8(A) BUSINESS DEVELOPMENT

Priority:

Other Significant

Legal Authority:

15 USC 634(b)(6), 636(j), 637(a) and (d)

CFR Citation:

13 CFR 124

Legal Deadline:

None

Abstract:

This rule proposes to make a number of changes to the regulations

governing the 8(a) Business Development (8(a) BD) Program and several

changes to SBA's size regulations. Some of the changes involve

technical issues, such as changing the term ``SIC code'' to ``NAICS

code'' to reflect the national conversion to the North American

Industry Classification System. SBA has learned through experience that

certain of its rules governing the 8(a) BD program are too restrictive

and serve to unfairly preclude firms from being admitted to the

program. In other cases, SBA has determined that a rule is too

expansive or indefinite and has sought to restrict or clarify that

rule. Changes are also being proposed to correct past public or agency

misinterpretation. Also, new situations have arisen that were not

anticipated when the current rules were drafted and the proposed rule

seeks to cover those situations. Finally, one of the changes, involving

Native Hawaiian Organizations, implements recently enacted legislation.

Statement of Need:

Sections 8(a) and 7(j) of the Small Business Act authorize the SBA to

administer the 8(a) BD program and assist eligible small disadvantaged

business concerns compete in the American economy through business

development. The 8(a) BD program provides procurement, financial,

management and technical assistance to foster the business growth and

development of 8(a) BD program participants. The proposed regulatory

action is necessary to implement changes to the regulations governing

the 8(a) BD program, the Small Disadvantaged Business (SDB) programs,

and to the SBA size regulations. The changes are proposed as a result

of the continuing need to ensure that SBA is effectively delivering the

8(a) BD program in accordance with the Small Business Act. In addition,

the regulatory action is needed to enable SBA to institute the proper

internal controls that will ensure effective monitoring and oversight

of the 8(a) BD Program.

Summary of Legal Basis:

This rule proposes to make some changes that involve technical issues,

correct some rules governing the 8(a) BD program that are too

restrictive, and others that require clarification. The rule change

will address new situations have arisen that were not anticipated when

the current rules were drafted. Finally, there is one change that

implements a statutory change.

Alternatives:

SBA will analyze and consider the impact of any comments received from

the public as a result of the proposed

[[Page 64350]]

regulations being published in the Federal Register. Where relevant and

appropriate, the regulations will be revised to incorporate these

comments.

Anticipated Cost and Benefits:

It is difficult to estimate the costs and benefits to the various

classes of firms affected by this rule as it is impossible to foresee

which future contracts above the competitive thresholds would be

awarded based on the various options available to contracting officers.

SBA believes that the benefits of the proposed rule exceed its costs

and exceed the benefits of continuing the status quo. SBA believes that

increased clarity and easing of restrictions in the overall proposed

changes set forth in this rule are beneficial to 8(a) applicants and

Participants.

Risks:

Because the 8(a) Program is a business development program--not a

contracting program--it is intended to foster the 8(a) firm's growth

(through various forms of technical, management, procurement and

financial assistance) and viability during the Participant's 9-year

term.

The regulatory action is intended to mitigate any risks associated with

program procedures and internal controls by ensuring clear and concise

regulations.

Timetable:

_______________________________________________________________________

Action Date FR Cite

_______________________________________________________________________

NPRM 10/28/09 74 FR 55694

NPRM Comment Period End 12/28/09

Final Action 04/00/10

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses, Governmental Jurisdictions

Government Levels Affected:

None

URL For Public Comments:

www.regulations.gov

Agency Contact:

Joe Loddo

Associate Administrator, Office of Business Development

Small Business Administration

409 3rd Street SW

Washington, DC 20416

Phone: 202 205-7550

Email: [email protected]

RIN: 3245-AF53

_______________________________________________________________________

SBA

159. SMALL BUSINESS SIZE STANDARDS: RETAIL TRADE INDUSTRIES

Priority:

Other Significant

Legal Authority:

15 USC 632(a)

CFR Citation:

13 CFR 121

Legal Deadline:

None

Abstract:

An SBA project is the review and update of all SBA size standards over

a 2-year period. This proposed rule is one of a series of proposals

evaluating the size standards for industries within a specific North

American Industry Classification System (NAICS) Industry Sector. This

action proposes revisions to certain industries in the NAICS Retail

Trade Industry Sector. The Retail Trade Industry Sector includes

companies engaged in retailing merchandise and rendering services

incidental to the sale of merchandise. These proposed revisions ensure

that SBA's size standards are consistently evaluated using the latest

available data.

Statement of Need:

SBA's small business size standards are used to establish eligibility

for financial assistance and Federal contracting opportunities for

small businesses. SBA is conducting a comprehensive review of all small

business size standards to ensure that they accurately reflect industry

structure, Federal government procurement practices and current

economic conditions so that Federal programs are able to effectively

assist small businesses. This rule reviews SBA size standards for

industries within NAICS Sector 44-45, Retail Trade, and revises size

standards for certain industries in the sector. The last such review of

size standards for retail trade industries was in the early 1980s.

Summary of Legal Basis:

The Small Business Act (15 U.S.C. 632(a)) delegates to SBA's

Administrator the responsibility for establishing small business

definitions, commonly referred to as size standards. The Act requires

that such definitions vary to reflect industry differences.

Alternatives:

By law, SBA is required to develop numerical size standards for

establishing eligibility for Federal small business assistance

programs. Other than varying size standards by industry, no practical

alternative exists to the systems of numerical size standards.

Anticipated Cost and Benefits:

The rule has proposed to increase size standards for 48 industries

within Sector 44-45, enabling about 8,800 additional firms to obtain

small business status and become eligible for Federal small business

assistance. This could potentially increase the small business share of

Federal contracting dollars by up to between $80 million and $100

million annually. The proposed action is not expected to result in

significant costs to both Federal government and small entities as

necessary administrative and operational mechanisms are already in

place.

Risks:

Not applicable.

Timetable:

_______________________________________________________________________

Action Date FR Cite

_______________________________________________________________________

NPRM 10/21/09 74 FR 53924

NPRM Comment Period End 12/21/09

Final Action 04/00/10

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

None

URL For Public Comments:

www.regulations.gov

Agency Contact:

Khem Sharma

Division Chief, Division of Size Standards, Office of Government

Contracting/Business Development

Small Business Administration

409 Third Street SW

Washington, DC 20416

Phone: 202 205-7189

Fax: 202 205-6390

RIN: 3245-AF69

[[Page 64351]]

_______________________________________________________________________

SBA

160. SMALL BUSINESS SIZE STANDARDS: OTHER SERVICES

Priority:

Other Significant

Legal Authority:

15 USC 632(a)

CFR Citation:

13 CFR 121

Legal Deadline:

None

Abstract:

An SBA project is the review of all SBA size standards over a 2-year

period. This proposed rule is one of a series of proposals evaluating

the size standards for industries within a specific North American

Industry Classification System (NAICS) Industry Sector. This action

proposes revisions to certain industries in the NAICS Other Services

Industry Sector. Other Services include, for example, repair and

maintenance services, personal and laundry services, and religious,

grant making, civic, and professional services. These proposed

revisions ensure that SBA's size standards are consistently evaluated

using the latest available data.

Statement of Need:

SBA's small business size standards are used to establish eligibility

for financial assistance and Federal contracting opportunities for

small businesses. SBA is conducting a comprehensive review of all small

business size standards to ensure that they accurately reflect industry

structure, Federal government procurement practices and current

economic conditions so that Federal programs are able to effectively

assist small businesses. This rule reviews SBA size standards for

industries within NAICS Sector 81, Other Services, and revises size

standards for certain industries in the sector. The last such review of

size standards for other services industries was in the early 1980s.

Summary of Legal Basis:

The Small Business Act (15 U.S.C. 632(a)) delegates to SBA's

Administrator the responsibility for establishing small business

definitions, commonly referred to as size standards. The Act requires

that such definitions vary to reflect industry differences.

Alternatives:

By law, SBA is required to develop numerical size standards for

establishing eligibility for Federal small business assistance

programs. Other than varying size standards by industry, no practical

alternative exists to the systems of numerical size standards.

Anticipated Cost and Benefits:

The rule has proposed to increase size standards for 18 industries

within Sector 81, enabling about 1,400 additional firms to obtain small

business status and become eligible for Federal small business

assistance. This could potentially increase the small business share of

Federal contracting dollars by up to between $25 million and $30

million annually. The proposed action is not expected to result in

significant costs to both Federal government and small entities as

necessary administrative and operational mechanisms are already in

place.

Risks:

Not applicable.

Timetable:

_______________________________________________________________________

Action Date FR Cite

_______________________________________________________________________

NPRM 10/21/09 74 FR 53941

NPRM Comment Period End 12/21/09

Final Action 04/00/10

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

None

URL For Public Comments:

www.regulations.gov

Agency Contact:

Khem Sharma

Division Chief, Division of Size Standards, Office of Government

Contracting/Business Development

Small Business Administration

409 Third Street SW

Washington, DC 20416

Phone: 202 205-7189

Fax: 202 205-6390

RIN: 3245-AF70

_______________________________________________________________________

SBA

161. SMALL BUSINESS SIZE STANDARDS: ACCOMMODATIONS AND FOOD SERVICE

INDUSTRIES

Priority:

Other Significant

Legal Authority:

15 USC 632(a)

CFR Citation:

13 CFR 121

Legal Deadline:

None

Abstract:

An SBA project is a review of all SBA size standards over a 2-year

period. This proposed rule is one of a series of proposals evaluating

the size standards for industries within a specific North American

Industry Classification System (NAICS) Industry Sector. This action

proposes revisions to certain industries in the NAICS Accommodations

and Food Services Industry Sector. The Accommodations and Food Services

Industry Sector includes companies that provide lodging and/or prepare

meals, snacks, and beverages for immediate consumption. These proposed

revisions ensure that SBA's size standards are consistently evaluated

using the latest available data.

Statement of Need:

SBA's small business size standards are used to establish eligibility

for financial assistance and Federal contracting opportunities for

small businesses. SBA is conducting a comprehensive review of all small

business size standards to ensure that they accurately reflect industry

structure, Federal government procurement practices and current

economic conditions so that Federal programs are able to effectively

assist small businesses. This rule reviews SBA size standards for

industries within NAICS Sector 72, Accommodation and Food Service, and

revises size standards for certain industries in the sector. The last

such review of size standards for industries in the accommodation and

food service sector was in the early 1980s.

Summary of Legal Basis:

The Small Business Act (15 U.S.C. 632(a)) delegates to SBA's

Administrator the responsibility for establishing small business

definitions, commonly referred to as size standards. The Act requires

that such definitions vary to reflect industry differences.

[[Page 64352]]

Alternatives:

By law, SBA is required to develop numerical size standards for

establishing eligibility for Federal small business assistance

programs. Other than varying size standards by industry, no practical

alternative exists to the systems of numerical size standards.

Anticipated Cost and Benefits:

The rule has proposed to increase size standards for five industries

within Sector 72, enabling about 2,050 additional firms to obtain small

business status and become eligible for Federal small business

assistance. This could potentially increase the small business share of

Federal contracting dollars by up to between $75 million annually. The

proposed action is not expected to result in significant costs to both

Federal government and small entities as necessary administrative and

operational mechanisms are already in place.

Risks:

Not applicable.

Timetable:

_______________________________________________________________________

Action Date FR Cite

_______________________________________________________________________

NPRM 10/21/09 74 FR 53913

NPRM Comment Period End 12/21/09

Final Action 04/00/10

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

None

URL For Public Comments:

www.regulations.gov

Agency Contact:

Khem Sharma

Division Chief, Division of Size Standards, Office of Government

Contracting/Business Development

Small Business Administration

409 Third Street SW

Washington, DC 20416

Phone: 202 205-7189

Fax: 202 205-6390

RIN: 3245-AF71

_______________________________________________________________________

SBA

162. WOMEN-OWNED SMALL BUSINESS FEDERAL CONTRACT PROGRAM

Priority:

Other Significant

Legal Authority:

15 USC 637(m)

CFR Citation:

13 CFR 121; 13 CFR 125; 13 CFR 127; 13 CFR 134

Legal Deadline:

None

Abstract:

The U.S. Small Business Administration (SBA) is prohibited from using

funding in Fiscal Year 2009 to implement the program relating to Women-

Owned Small Business (WOSB) Federal Contract Assistance Procedures

published on October 1, 2008, by the Omnibus Appropriations Act, 2009,

Div. D, title V, section 522 (Mar. 11, 2009). In the future, SBA plans

to withdraw this proposed rule and promulgate a new rule in order to

establish and implement an effective WOSB procurement program. SBA is

committed to moving forward to implement a successful WOSB procurement

program. This rule will establish regulations to implement the Women-

Owned Small Business (WOSB) Federal Contract Assistance Program,

authorized under section 8(m) of the Small Business Act. Section 8(m)

was enacted as part of Public Law 106-554 to provide a targeted

procurement mechanism to assist Federal agencies in achieving the

statutory goal of 5 percent for contracting with WOSBs. In accordance

with section 8(m), the new regulations would authorize contracting

officers to restrict competition to eligible WOSBs for certain Federal

contracts in industries in which SBA has determined that WOSBs are

underrepresented or substantially underrepresented in Federal

procurement. Also consistent with section 8(m), the authority to

restrict competition would be limited to contracts not exceeding $3

million, or $5 million in the case of manufacturing contracts. In

implementing section 8(m) the proposed regulations would further

provide: the eligible industries in which WOSBs are underrepresented or

substantially underrepresented; the specific eligibility requirements

for WOSBs to qualify for program participation; the procedures for

concerns to certify their eligibility; the process for SBA to verify

the continuing WOSB eligibility; the contractual and business

development assistance available under the program; the relevant

protest and appeal procedures; and the applicable penalties.

Statement of Need:

``Although the growth rate in the number of women-owned small

businesses (WOSBs) was almost twice that of all firms between 1997 and

2002, WOSBs have not experienced a proportional increase in their share

of Federal contracting dollars.'' LaLa Wu and Kate Collier, The

National Plan of Action: Then and Now, Bella Abzug Leadership

Institute, November 2007 (hereinafter ``The National Plan of Action'').

``Between 1997 and 2002, the numbers of women-owned firms overall

increased by 19.8 percent and of women-owned employer firms, by 8.3

percent.'' SBA Office of Advocacy. ``Women in Business: 2006. A

Demographic Review of Women's Business Ownership,'' 2007. Most tend be

small; only 1.8 percent of WOSBs have receipts over $1 million and less

than 0.1 percent had more than 500 employees. See The Utilization of

Women-Owned Small Business in Federal Contract, Kauffman-RAND

Institute, 2007. Firms owned by women increased employment by 70,000

and those by men lost 1 million employees. See id. In addition, in

2002, women-owned firms accounted for 28.2 percent of all non-farm

firms in the United States. See id. Despite this growth, the share of

WOSB prime contract awards was 3.39 percent in FY 2008.

Several congressional and executive efforts over the years to increase

Federal contracting with WOSBs have not enhanced the WOSB share of

Federal contracting dollars as much as anticipated. For example, in

1979, when Executive Order 12138 ``charged Federal agencies with

responsibility for providing procurement assistance to women-owned

businesses, WOSBs received only 0.2 percent of all Federal

procurements.'' The National Plan of Action. In 9 years, the percentage

of WOSB Federal procurements had grown to only one percent. See id.

Similarly, in 1988, the Women's Business Ownership Act, Public Law

100--588 (Oct. 25, 1988), ``was enacted to assist women in starting,

managing and growing small businesses.'' Id. ``While this program has

assisted thousands of women in obtaining business financing and

information, it has had less success in the Federal procurement

arena.'' Id.

[[Page 64353]]

Subsequently, in 1994, section 7106 of the Federal Acquisition

Streamlining Act (FASA), Public Law 103--355, ``amended the Small

Business Act by establishing a target that was aimed at increasing

opportunities for women to compete for Federal contracts.'' Id. ``FASA,

among other things, established a Governmentwide goal for participation

by WOSBs in procurement contracts of not less than 5 percent of the

total value of all prime contract and subcontract awards for each

fiscal year.'' Id.

Federal Procurement Data System (FPDS) data indicates that since fiscal

year (FY) 1996, Federal agencies have not met the separate 5 percent

Governmentwide WOSB goal for prime contracts and subcontracts. However,

the share of Federal prime contracting dollars to WOSBs has increased

over the years. For example, in FY 2000, WOSBs received 2.3 percent of

the approximately $200 billion in Federal prime contract awards. The

share of WOSB prime contract award dollars increased to 2.49 percent in

FY 2001, and again to 2.90, 2.98, and 3.03 percent in FYs 2002, 2003

and 2004, respectively. In FY 2005, WOSB prime contract award dollars

increased to 3.18 percent, in FY 2006, increased again to 3.41 percent

of prime contract award dollars, in FY 2007 it remained at 3.41 percent

and in FY 2008 it dropped slightly to 3.39 percent. Although this

increase shows a growing amount of contract of dollars going to WOSBs,

SBA anticipates the WOSB Program will serve to quicken the increase of

that percentage or perhaps give impetus to the development of new

WOSBs.

The foregoing historical data demonstrates the need for targeted

government action to facilitate participation by WOSBs in Federal

government contracting. Congress enacted section 811 of the Small

Business Reauthorization Act of 2000, Public Law 106-554, to provide

that mechanism.

Summary of Legal Basis:

Section 811 of the Small Business Reauthorization Act of 2000, amended

the Small Business Act (Act) by adding a new section 8(m), 15 U.S.C.

637(m), authorizing contracting officers to restrict competition to

eligible WOSBs for certain Federal contracts in industries in which SBA

has determined that WOSBs are underrepresented or substantially

underrepresented in Federal procurement. The new section 8(m) of the

Act explicitly limits the contracting officer's authority to restrict

competition to contracts not exceeding $3 million ($5 million for

manufacturing). It further requires SBA to conduct a study to identify

the industries in which WOSBs are underrepresented and substantially

underrepresented in Federal procurement and requires the head of any

department or agency to provide SBA information that SBA deems

necessary to conduct the study.

Alternatives:

This proposed rule implements statutory provisions for the purpose of

facilitating participation by WOSBs in Federal Government contracting.

Anticipated Cost and Benefits:

Implementing these statutory provisions may impose additional costs on

the Federal Government and small businesses. The costs and benefits of

this proposed rule will be analyzed in the rule's regulatory impact

analysis and its initial regulatory flexibility analysis.

Risks:

This proposed rule poses no risks to public health, safety, or the

environment.

Timetable:

_______________________________________________________________________

Action Date FR Cite

_______________________________________________________________________

NPRM 02/00/10

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

Federal

Agency Contact:

Dean R. Koppel

Acting Director for Government Contracting, Office of Policy, Planning

and Liaison

Small Business Administration

409 3rd Street SW

Washington, DC 20416

Phone: 202 205-7322

Fax: 202 481-1540

RIN: 3245-AG06

BILLING CODE 8025-01-S