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contains regulatory documents having general

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are keyed to and codified in the Code of

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Rules and Regulations Federal Register

46885 

Vol. 74, No. 176 

Monday, September 14, 2009 

SMALL BUSINESS ADMINISTRATION 

13 CFR Parts 124, 125, and 126 

RIN 3245–AF74 

Inflationary Adjustments to 

Acquisition-Related Dollar Thresholds 

AGENCY: U.S. Small Business 

Administration. 

ACTION: Interim final rule, with request 

for comments. 

SUMMARY: The U.S. Small Business 

Administration (SBA) is amending its 

regulations to implement the statutorily 

required inflationary adjustment of the 

Agency’s acquisition-related dollar 

thresholds and to make SBA’s 

regulations consistent with the 

inflationary adjustments that are already 

codified in the Federal Acquisition 

Regulation (FAR). 

DATES: Effective Date: This rule is 

effective on September 14, 2009. 

Comment Date: Comments must be 

received on or before October 14, 2009. 

ADDRESSES: You may submit comments, 

identified by RIN 3245–AF74 by any of 

the following methods: 

• Federal Rulemaking Portal: http:// 

www.regulations.gov and follow the 

instructions for submitting comments. 

• Mail, for paper, disk, or CD–ROM 

submissions: Dean Koppel, Assistant 

Director for Policy and Research, 409 

Third Street, SW., Washington, DC 

20416. 

• Hand Delivery/Courier: Dean 

Koppel, Assistant Director for Policy 

and Research, 409 Third Street, SW., 

Washington, DC 20416. 

SBA will post all comments on 

http://www.Regulations.gov. If you wish 

to submit confidential business 

information (CBI) as defined in the User 

Notice at http://www.Regulations.gov, 

please submit the information to Dean 

Koppel and highlight the information 

that you consider to be CBI and explain 

why you believe this information 

should be held confidential. SBA will 

review the information and make a final 

determination of whether the 

information will be published or not. 

FOR FURTHER INFORMATION CONTACT: 

Dean Koppel, Assistant Director for 

Policy, and Research, at (202) 205–7322 

or by e-mail at dean.koppel@sba.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Small Business Act provides 

thresholds with respect to 8(a) Business 

Development (8(a)), Historically 

Underutilized Business Zone 

(HUBZone), Service Disabled VeteranOwned (SDVO), and other Government 

Contracting Programs. For example, 

work offered into the 8(a) Program shall 

be competed among eligible 8(a) 

participants if the value of the 

procurement is greater than $5 million 

for procurements with manufacturing 

North American Industry Classification 

System (NAICS) codes and greater than 

$3 million for procurements with other 

than manufacturing NAICS codes, 

commonly referred to as ‘‘all other’’ 

procurements. Section 431a of title 41 of 

the United States Code authorizes the 

Office of Federal Procurement Policy’s 

FAR Council to review all statutes with 

dollar based acquisition-related 

thresholds and adjust for inflation 

where appropriate. The FAR Council 

reviewed all such thresholds and 

decided that thresholds contained 

within the Small Business Act should 

be adjusted. The FAR final rule, 

published on September 28, 2006, at 71 

FR 57363, amended the following FAR 

provisions and established the adjusted 

dollar based acquisition thresholds for 

SBA’s small business programs. 

FAR Citation Threshold 

adjustment 

FAR 7.104(d)(2)(i)(A) ............ $7,500,000 

FAR 7.104(d)(2)(i)(B) ............ 5,500,000 

FAR 7.107(b)(1) .................... 86,000,000 

FAR 7.107(b)(2) .................... 8,600,000 

FAR 19.702(a)(1) .................. 550,000 

FAR 19.702(a)(2) .................. 550,000 

FAR 19.704(a)(9) .................. 550,000 

FAR 19.708(b)(1) .................. 550,000 

FAR 19.805–1(a)(2) .............. 5,500,000 

FAR 19.805–1(a)(2) .............. 3,500,000 

FAR 19.1306(a)(2)(i) ............ 5,500,000 

FAR 19.1306(a)(2)(ii) ............ 3,500,000 

FAR 19.1406(a)(2)(i) ............ 5,500,000 

Because these adjusted thresholds 

affect SBA’s contracting programs, this 

rule makes the necessary changes to the 

Agency’s regulations to ensure 

consistency with the FAR. 

II. Section By Section Analysis 

SBA is amending § 124.506(a) to 

inform the users about the inflationary 

adjustments for the 8(a) Program’s 

competitive thresholds. Thresholds 

within this section are stating the total 

dollar values for determining if 

procurements shall be competed among 

8(a) firms or awarded as 8(a) sole-source 

contracts. These thresholds are 

acquisition-related dollar thresholds as 

defined elsewhere in this preamble and 

in part contribute to the acquisition 

community’s procurement planning for 

contracts awarded through the SBA’s 

8(a) Program. Section 124.506(a) is 

further amended to correct the identifier 

of a referenced example that was 

indirectly changed by the re-designating 

of paragraphs within § 124.506(a). 

Section 125.2 is revising acquisitionrelated dollar thresholds the Federal 

agencies use for determining when the 

procuring activities must coordinate 

review of its agencies’ acquisition 

strategies with the agencies’ respective 

small business specialists (SBSs), 

Offices of Small Disadvantaged Business 

Utilization (OSDBUs), and the SBA’s 

procurement center representatives 

(PCRs). 

Section 125.3 provides the statutory 

thresholds for the submission of 

subcontracting plans by other than 

small business concerns awarded 

contracts offering subcontracting 

possibilities. Only one threshold for 

contracts and modifications in excess of 

$500,000 for procurements that are for 

other than construction of public 

facilities, received an inflationary 

adjustment under the FAR; section 

125.3 reflects that change. 

SBA is adding a paragraph at § 125.7 

that provides an explanation of the 

inflationary adjustments as applied to 

regulations governing SBA’s 

Government Contracting Assistance 

Programs. 

The SDVO SBC Program regulations 

at § 125.20 contain statutory acquisitionrelated dollar thresholds for competing 

manufacturing and ‘‘all other’’ 

requirements, as explained elsewhere in 

the preamble. Only the threshold of 

$5,000,000, for competing 

manufacturing procurements is being 

revised to reflect the inflationary 

adjustment made in the FAR. 


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46886 Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Rules and Regulations 

The SBA is amending § 126.601 by 

adding a new paragraph to advise the 

users about the inflationary adjustments 

for the HUBZone Program’s competitive 

thresholds that are used to determine if 

procurements are to be competed among 

qualified HUBZone firms or awarded as 

HUBZone sole-source contracts. The 

amendments to § 126.612 reflect the 

actual revised thresholds, each of which 

establishes a dollar value that is utilized 

by the Federal procuring agencies for 

determining competitive decisions for 

procurements that are limited to 

participation by qualified HUBZone 

firms. 

III. Justification for Publication as an 

Interim Final Status Rule 

In general, SBA publishes a rule for 

public comment before issuing a final 

rule in accordance with the 

Administrative Procedure Act (APA) 

and SBA regulations. 5 U.S.C. 553 and 

13 CFR 101.108. The APA provides an 

exception to this standard rulemaking 

process where an agency finds good 

cause to adopt a rule without prior 

public participation. 5 U.S.C. 

553(b)(3)(B). The good cause 

requirement is satisfied when prior 

public participation is impracticable, 

unnecessary, or contrary to the public 

interest. Under such circumstances, an 

agency may publish an interim final 

rule without soliciting public comment. 

In the present case, the SBA notes that 

Public Law 108–375, 41 U.S.C. 431a. 

requires the FAR Council to take 

responsibility for adjusting each 

acquisition-related dollar threshold 

provided by law and publish a notice of 

the adjusted dollar thresholds in the 

Federal Register. These actions have 

been completed and a final rule with an 

immediate effective date was published 

in the Federal Register on September 

28, 2006, 71 FR 57363. Small business 

programs within the SBA’s 8(a) 

Business Development, Government 

Contracting, and HUBZone Programs 

codified within Title 13, Parts 124, 125, 

and 126 contain acquisition-related 

dollar thresholds subject to inflationary 

adjustments that are currently codified 

in the FAR. This interim final rule is 

amending SBA’s regulations to 

acknowledge and implement the 

adjustments that are codified within the 

FAR. The SBA is not establishing new 

or differing acquisition-related dollar 

thresholds with this interim final rule. 

Rather, SBA is merely amending its 

regulations to advise the users of SBA’s 

regulations of the inflationary 

adjustments to SBA’s small business 

programs every five years. Immediate 

implementation of the interim final rule 

is needed to ensure a consistency 

between the SBA’s regulations and the 

FAR for the acquisition-related dollar 

thresholds governing small business 

contracting opportunities. 

Consequently, SBA believes it is 

unnecessary to publish this rule as a 

proposed rule because it is beneficial to 

the public and acquisition communities 

that the regulations governing the SBA’s 

small business programs are made 

consistent through implementing this 

rule promptly. Comments may be 

offered by the public and will be 

reviewed by the SBA. Accordingly, SBA 

finds that good cause exists to publish 

this rule as an interim final rule as 

quickly as possible. 

IV. Justification for Immediate Effective 

Date of Interim Final Rule 

The APA requires that ‘‘publication or 

service of a substantive rule shall be 

made not less than 30 days before its 

effective date, except * * * as 

otherwise provided by the agency for 

good cause found and published with 

the rule.’’ 5 U.S.C. 553(d)(3) SBA finds 

that good cause exists to make this final 

rule effective the same day it is 

published in the Federal Register. 

The purpose of the APA provision is 

to provide interested and affected 

members of the public sufficient time to 

adjust their behavior before the rule 

takes effect. For the reasons set forth 

above in Section III, ‘‘Justification for 

Publication as Interim Final Status 

Rule’’, SBA finds that good cause exists 

for making this interim final rule 

effective immediately, instead of 

observing the 30-day period between 

publication and effective date. 

Nonetheless, the public may provide 

comments to SBA by the deadline for 

comments. SBA will review any 

comments received. 

V. Compliance With Executive Orders 

12866, 12988, and 13132, and the 

Paperwork Reduction Act (44 U.S.C. 

Ch. 35), and the Regulatory Flexibility 

Act (5 U.S.C. 601–612) 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that this rule 

does not constitute a significant 

regulatory action under E.O. 12866. 

Executive Order 12988 

This action meets applicable 

standards set forth in Sections 3(a) and 

3(b)(2) E.O. 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 the purpose of E.O. 13132, SBA 

has determined that the rule will not 

have 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, this 

final rule has no federalism implications 

warranting preparation of a federalism 

assessment. 

Paperwork Reduction Act 

SBA has determined that this rule 

does not impose additional reporting or 

recordkeeping requirements under the 

Paperwork Reduction Act, 44 U.S.C., 

Chapter 35. 

Regulatory Flexibility Act 

Because this rule is an interim final 

rule, there is no requirement for SBA to 

prepare an Initial Regulatory Flexibility 

Act analysis. The RFA requires 

administrative agencies to consider the 

effect of their actions on small entities, 

small non-profit businesses, and small 

local governments. Pursuant to the RFA, 

when an agency issues a rule the agency 

must prepare analysis that describes 

whether the impact of the rule will have 

a significant economic impact on a 

substantial number of small entities. 

However, the RFA requires such 

analysis only where notice and 

comment rulemaking is required. 

List of Subjects 

13 CFR Part 124 

Administrative practice and 

procedure, Government procurement, 

Hawaiian Natives, Indians—business 

and finance, Minority business, 

Reporting and recordkeeping 

requirements, Small businesses, 

Technical assistance. 

13 CFR Part 125 

Government contracts, Government 

procurement, Reporting and 

recordkeeping requirements, Small 

businesses, Technical assistance. 

13 CFR Part 126 

Administrative practice and 

procedure, Government procurement, 

Penalties, Reporting and recordkeeping 

requirements Small businesses. 

■ For the reasons stated in the preamble, 

the Small Business Administration 

amends 13 CFR Parts 124, 125 and 126 

as follows: 


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Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Rules and Regulations 46887 

PART 124—8(a) BUSINESS 

DEVELOPMENT/SMALL 

DISADVANTAGED BUSINESS STATUS 

DETERMINATION 

■ 1. The authority citation for 13 CFR 

Part 124 continues to read as follows: 

Authority: 15 U.S.C. 634(b)(6), 636(j) 

637(a), 637(d) and Public Law 99–661, Public 

Law 100–656, sec. 1207, Public Law 100– 

656, Public Law 101–37, Public Law 101– 

574, and 42 U.S.C. 9815. 

Subpart A—8(a) Business 

Development 

§ 124.506 [Amended] 

■ 2. Amend § 124.506 as follows: 

■ a. In § 124.506 redesignate paragraphs 

(a)(1) through (4) as paragraphs (a)(2) 

through (5) and add new paragraph 

(a)(1) to read as set forth below. 

■ b. Amend newly designated paragraph 

(a)(2)(ii) by removing ‘‘$5,000,000’’ and 

adding in its place ‘‘$5,500,000’’. 

■ c. Amend newly designated paragraph 

(a)(2)(ii) by removing ‘‘$3,000,000’’ and 

adding in its place ‘‘$3,500,000’’. 

■ d. Amend newly designated 

paragraph (a)(4) by removing ‘‘$2.7 

million’’ and adding in its place ‘‘$3.4 

million’’. 

■ e. Amend newly designated paragraph 

(a)(4) by removing ‘‘$3.1 million’’ and 

adding in its place ‘‘$3.7 million’’. 

§ 124.506 At what dollar threshold must an 

8(a) procurement be competed among 

eligible Participants? 

(a) * * * 

(1) The Federal Acquisition 

Regulatory Council (FAR Council) has 

the responsibility of adjusting each 

acquisition-related dollar threshold on 

October 1, of each year that is evenly 

divisible by five. Acquisition-related 

dollar thresholds are defined as dollar 

thresholds that are specified in law as 

a factor in defining the scope of the 

applicability of a policy, procedure, 

requirement, or restriction provided in 

that law to the procurement of property 

or services by an executive agency as 

determined by the FAR Council. 41 

U.S.C. 431a(c). Part 124, Subpart A, 8(a) 

Business Development, contains 

acquisition-related dollar thresholds 

subject to inflationary adjustments. The 

FAR Council shall publish a notice of 

the adjusted dollar thresholds in the 

Federal Register. The adjusted dollar 

thresholds shall take effect on the date 

of publication. 

* * * * * 

PART 125—GOVERNMENT 

CONTRACTING PROGRAMS 

■ 3. The authority citation for 13 CFR 

Part 125 continues to read as follows: 

Authority: 15 U.S.C. 632(p), (q); 634(b)(6); 

637; 644 and 657(f). 

■ 4. Amend § 125.2 as follows: 

■ a. Amend paragraph (b)(2)(i)(A) by 

removing ‘‘$7’’ and adding in its place 

‘‘$7.5’’; 

■ b. Amend paragraph (b)(2)(i)(B) by 

removing ‘‘$5’’ and adding in its place 

‘‘$5.5’’; 

■ c. Amend paragraph (d)(5)(i)(A) by 

removing ‘‘$75’’ and adding in its place 

‘‘$86’’; 

■ d. Revise paragraph (d)(5)(i)(B) to read 

as follows: 

§ 125.2 Prime contracting assistance. 

* * * * * 

(d) * * * 

(5) * * * 

(i) * * * 

(B) Benefits equivalent to 5 percent of 

the contract or order value (including 

options) or $8.6 million, whichever is 

greater, where the contract or order 

value exceeds $86 million. 

* * * * * 

§ 125.3 [Amended] 

■ 5. Amend § 125.3(a) as follows: 

■ a. Amend paragraph (a) by removing 

‘‘$500,000’’ and adding in its place 

‘‘$550,000’’; 

■ b. Amend paragraph (c)(1) by 

removing ‘‘$500,000’’ and adding in its 

place ‘‘$550,000’’. 

■ 6. Add § 125.7 to read as follows: 

§ 125.7 Acquisition-related dollar 

thresholds. 

The Federal Acquisition Regulatory 

Council (FAR Council) has the 

responsibility of adjusting each 

acquisition-related dollar threshold on 

October 1, of each year that is evenly 

divisible by five. Acquisition-related 

dollar thresholds are defined as dollar 

thresholds that are specified in law as 

a factor in defining the scope of the 

applicability of a policy, procedure, 

requirement, or restriction provided in 

that law to the procurement of property 

or services by an executive agency as 

determined by the FAR Council. 41 

U.S.C. 431a(c). Part 125, Government 

Contracting Programs, contains 

acquisition-related dollar thresholds 

subject to inflationary adjustments. The 

FAR Council shall publish a notice of 

the adjusted dollar thresholds in the 

Federal Register. The adjusted dollar 

thresholds shall take effect on the date 

of publication. 

Subpart C—Contracting With SDVO 

SBCs 

§ 125.20 [Amended] 

■ 7. Amend paragraph (b)(1) of § 125.20 

by removing ‘‘$5,000,000’’ and adding 

in its place ‘‘$5,500,000’’. 

PART 126—HUBZONE PROGRAM 

■ 8. The authority citation for 13 CFR 

Part 126 continues to read as follows: 

Authority: 15 U.S.C. 632(a), 632(j), 632(p) 

and 657a. 

Subpart F—Contractual Assistance 

■ 9. Amend § 126.601 to redesignate 

paragraphs (a) through (e) as paragraphs 

(b) through (f) and add new paragraph 

(a) to read as follows: 

§ 126.601 What additional requirements 

must a qualified HUBZone SBC meet to bid 

on a contract? 

(a) The Federal Acquisition 

Regulatory Council (FAR Council) has 

the responsibility of adjusting each 

acquisition-related dollar threshold on 

October 1 of each year that is evenly 

divisible by five. Acquisition-related 

dollar thresholds are defined as dollar 

thresholds that are specified in law as 

a factor in defining the scope of the 

applicability of a policy, procedure, 

requirement, or restriction provided in 

that law to the procurement of property 

or services by an executive agency as 

determined by the FAR Council. 41 

U.S.C. 431a(c). Part 126, Subpart F, 

Contract Assistance, contains 

acquisition-related dollar thresholds 

subject to inflationary adjustments. The 

FAR Council shall publish a notice of 

the adjusted dollar thresholds in the 

Federal Register. The adjusted dollar 

thresholds shall take effect on the date 

of publication. 

* * * * * 

§ 126.612 [Amended] 

■ 10. Amend § 126.612 as follows: 

■ A. Amend paragraph (b)(1) by 

removing ‘‘$5,000,000’’ and adding in 

its place ‘‘$5,500,000’’. 

■ B. Amend paragraph (b)(2) by 

removing ‘‘$3,000,000’’ and adding in 

its place ‘‘$3,500,000’’. 

Dated: August 25, 2009. 

Karen G. Mills, 

Administrator. 

[FR Doc. E9–21602 Filed 9–11–09; 8:45 am] 

BILLING CODE 8025–01–P 


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