35810 Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations

to serve on the Board for a period of up

to six months or until a successor is

appointed, whichever is sooner,

provided that the eligibility

requirements of the Order are still met.

The amendment will more accurately

reflect the time needed to fill a Board

vacancy.

The amendments will ensure Board

continuity and full representation and

allow the Board to operate in an

effective and efficient manner and

should be made effective as soon as

possible. Therefore, good cause exists

for making this rule effective less than

30 days from the date of publication in

the Federal Register. The proposed

amendments to the order are made final

in this action.

List of Subjects in 7 CFR Part 1160

Fluid milk products, Milk, Promotion.

For the reasons set forth in the

preamble, 7 CFR part 1160 is amended

as follows:

PART 1160—FLUID MILK PROMOTION

PROGRAM

1. The authority citation for 7 CFR

Part 1160 continues to read as follows:

Authority: 7 U.S.C. 6401–6417.

2. In § 1160.200, paragraph (a) is

revised to read as follows:

§ 1160.200 Establishment and

membership.

(a) There is hereby established a

National Fluid Milk Processor Board of

20 members, 15 of whom shall represent

geographic regions and five of whom

shall be at-large members of the Board.

To the extent practicable, members

representing geographic regions shall

represent fluid milk processing

operations of differing sizes. No fluid

milk processor shall be represented on

the Board by more than three members.

The at-large members shall include at

least three fluid milk processors and at

least one member from the general

public. Except for the member or

members from the general public,

nominees appointed to the Board must

be active owners or employees of a fluid

milk processor. The failure of such a

member to own or work for a fluid milk

processor or its successor fluid milk

processor shall disqualify that member

for membership on the Board except

that such member shall continue to

serve on the Board for a period of up to

six months following the

disqualification or until appointment of

a successor Board member to such

position, whichever is sooner, provided

that such person continues to meet the

criteria for serving on the Board as a

processor representative.

* * * * *

Dated: May 31, 2000.

Kathleen A. Merrigan,

Administrator, Agricultural Marketing

Service.

[FR Doc. 00–14186 Filed 6–5–00; 8:45 am]

BILLING CODE 3410–02–P

DEFENSE NUCLEAR FACILITIES

SAFETY BOARD

10 CFR Part 1703

FOIA Fee Schedule

AGENCY: Defense Nuclear Facilities

Safety Board.

ACTION: Update of FOIA Fee Schedule.

SUMMARY: The Defense Nuclear

Facilities Safety Board is publishing its

annual update to the Freedom of

Information Act (FOIA) Fee Schedule

pursuant to 10 CFR 1703.107(b)(6) of the

Board’s regulations.

EFFECTIVE DATE: June 1, 2000.

FOR FURTHER INFORMATION CONTACT:

Kenneth M. Pusateri, General Manager,

Defense Nuclear Facilities Safety Board,

625 Indiana Avenue, NW, Suite 700,

Washington, DC 20004–2901, (202) 694–

7060.

SUPPLEMENTARY INFORMATION: The FOIA

requires each Federal agency covered by

the Act to specify a schedule of fees

applicable to processing of requests for

agency records. 5 U.S.C. 552(a)(4)(i). On

March 15, 1991, the Board published for

comment in the Federal Register its

proposed FOIA Fee Schedule. 56 FR

11114. No comments were received in

response to that notice and the Board

issued a final Fee Schedule on May 6,

1991.

Pursuant to 10 CFR 1703.107(b)(6) of

the Board’s regulations, the Board’s

General Manager will update the FOIA

Fee Schedule once every 12 months.

Previous Fee Schedule updates were

published in the Federal Register and

went into effect, most recently, on June

1, 1999, 99 FR 14685.

Board Action

Accordingly, the Board issues the

following schedule of updated fees for

services performed in response to FOIA

requests.

Defense Nuclear Facilities Safety Board

Schedule of Fees for FOIA Services

(Implementing 10 CFR 1703.107(b)(6))

Search or Review Charge—$54 per hour

Copy Charge (paper)—$.04 per page, if

done in-house, or generally available

commercial rate (approximately $.10

per page)

Copy Charge (3.5′ diskette)—$5.00 per

diskette

Copy Charge (audio cassette)—$3.00 per

cassette

Duplication of Video

$25.00 for each individual videotape;

$16.00 for each additional individual

videotape

Copy Charge for large documents (e.g.,

maps, diagrams)—Actual commercial

rates.

Dated: May 31, 2000.

Kenneth M. Pusateri.

General Manager.

[FR Doc. 00–14043 Filed 6–5–00; 8:45 am]

BILLING CODE 3670–01–M

SMALL BUSINESS ADMINISTRATION

13 CFR Part 121

Small Business Size Standards; Help

Supply Services

AGENCY: Small Business Administration.

ACTION: Final rule.

SUMMARY: The Small Business

Administration (SBA) is establishing a

size standard of $10 million in average

annual receipts for Help Supply

Services—Standard Industrial

Classification (SIC) 7363. The current

size standard for this industry is $5.0

million. This revision is made to better

define the size of business in this

industry that SBA believes should be

eligible for Federal small business

assistance programs. SBA is also

clarifying language about affiliation

when a Professional Employer

Organization (PEO) is co-employer of a

firm’s employees.

DATES: This rule is effective on July 6,

2000.

FOR FURTHER INFORMATION CONTACT:

Patricia B. Holden, Office of Size

Standards, (202) 205–6618 or (202) 205–

6385.

SUPPLEMENTARY INFORMATION: SBA

proposed a revision to the size standard

for the Help Supply Services industry

(SIC 7363) from $5.0 million to $10.0

million average annual receipts (64 FR

55873, dated October 15, 1999). The

proposal was made following comments

from the public expressing concern that

the size standard has not kept pace with

the rapid growth in the industry due in

part to the trends of outsourcing and

downsizing. The industry has changed

in two ways—help supply firms are

larger and they are providing a wider

range of personnel to businesses. We

also had a request to allow help supply

Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations 35811

firms to exclude funds collected for and

remitted to unaffiliated third parties

from gross receipts, as is currently done

for travel agents and real estate agents,

since 60 percent to 85 percent of

revenues on many Federal contracts are

‘‘passed-through’’ to a firm’s employees

or associates.

The current size standard for this

industry, $5.0 million, is based on gross

billings including funds paid to

employees (sometimes referred to as

‘‘associates’’). Based on a review of

industry data, SBA proposed increasing

the size standard for the Help Supply

Services industry to $10 million in

average annual receipts. SBA did not

propose a change to the way average

annual receipts are calculated for firms

in the Help Supply Services industry.

Under SBA’s size regulations (13 CFR

121.104), the size of a firm for a

receipts-based size standard is based on

information reported on a firm’s Federal

tax returns. Generally, receipts reported

to the Internal Revenue Service (IRS)

include a firm’s gross receipts or sales

from provision of goods or services.

Only when firms in an industry

generally display certain characteristics

will we exclude certain pass-though

revenues from the calculation of gross

receipts. As explained in the proposed

rule, SBA evaluated this issue and

concluded that gross receipts is

appropriate in calculating the size of a

firm in this industry.

The final rule adopts the proposed

size standard of $10 million based on

our analysis of the industry as presented

in the proposed rule. The comments

received on the proposed rule did not

provide us with sufficient reasons to

alter our assessment of the industry data

or the position that the size standard

should be based on gross receipts. The

comments to the proposed rule and our

position are discussed below.

Discussion of Comments

We received six timely comments on

the proposed size standard—four from

individual firms, one from an

association and one from an SBA

attorney. The association representing

over 1,400 firms supported adopting the

proposed rule. Of the four firms who

commented, two were opposed, one was

for and one was for a size standard

increase, but higher than the one

proposed. The comments raised four

major issues. Each of these issues is

discussed below along with our

response.

Small Firms May Be Harmed by the

Increase in the Size Standard

Two comments raised the issue of

small firms being at a disadvantage if

they would have to compete with firms

in the $5.0 million to $10.0 million

range. They contend that companies

with $5 million to $10 million in

receipts have established themselves in

the industry. If these businesses were

defined as small, they would take away

work from the presently defined small

businesses. This issue is raised often

when we proposes to increase the size

standard, and it is a valid concern.

However, we believe our analysis of the

industry clearly supports that firms of

up to $10 million in receipts are small

businesses within this industry. The

average firm in the industry generates

almost $3 million in receipts and firms

of $10 million or less in receipts

account for only a little more than a

third of total industry receipts. Given

these and the characteristics discussed

in the proposed rule, we believe we

have identified the firms reasonably

considered small in this industry.

Related to this issue, we are looking

into ways to protect the smaller firms

while having a size standard that

includes firms of sufficient size to

handle the typical Federal procurement.

One pilot program currently being

tested is the Very Small Business SetAside Program. This program reserves

procurements of $50,000 or less for very

small businesses—defined as a business

with not more than 15 employees and

not more than $1.0 million revenues.

The pilot program is being conducted

within the geographical area of ten SBA

district offices. (For more information

on this program, please call the SBA’s

Office of Government Contracting at

(202) 205–6460, or visit our web site at

http://www.sba.gov/GC/vsbqa.html.)

Size Standards Methodology and Data

One comment disagreed with our use

and analysis of the 1992 Census data to

evaluate the size standard for this

industry. The comment recommended a

size standard to $20.0 million based on

more recent data on the industry. In

particular, the comment presented data

(without citing its sources) showing

average firm size and the four-firm

concentration ratio to be much higher

than our calculations shown in the

proposed rule. We used the latest

available Census Bureau data on this

industry. We recognize that the industry

has grown since the last data were

collected, but until more complete data

are available, we must continue to rely

on the 1992 Census data as the most

complete and representative data

available on the Help Supply Services

industry for establishing size standards.

We expect to get newer data later this

year based on the 1997 Economic

Census. If these data show the $10

million to be an inappropriate size

standard, we will consider publishing

another proposal based on an analysis of

that new data.

Calculation of Average Annual Receipts

SBA received one comment stating

that firms in this industry do indeed

work on commissions, but it is called a

‘‘rate’’ and that revenues are artificially

inflated if labor costs are not excluded

from the calculation. The comment

asserts that the labor rate is a passthrough and only the mark-up rate is the

firm’s revenues. They disagreed with

the analysis done by SBA on the factors

such as agent-like relationship in

arriving at the position not to exclude

labor costs for this industry. Further, the

comment argued that staffing for this

industry is like inventory in other

industries.

We disagree. The proposed rule stated

five characteristics that we consider in

assessing whether or not to exclude

certain types of ‘‘pass-through’’

revenues. The argument that we should

view the personnel supplied by help

supply services firms to their client

firms as inventory did not convince us

that an agent-like relationship exists.

Help supply services firms are

providing their own resources (or

‘‘inventory’’) under their control to

another firm. On the other hand, the

role of an agent is to represent the

agent’s principal. Often an agent

negotiates a transaction bringing parties

together, but always acts on behalf of

the principal as required by their

fiduciary relationship. The comment

did not identify which party would be

the principal, but it would not be the

employees/associates (also described by

the comment as ‘‘inventory’’) and it

would not be the firm using the

employees. Rather, help supply services

firms act on their own behalf and in

their own interest when negotiating to

obtain personnel or to supply staffing to

a firm. For an agency to exist, there

must be a principal-agent relationship

and that is not evident in this industry.

We also do not agree with the position

that the labor costs of help supply

services firms are the same as funds

held in trust for another. While there is

a close connection between the wages

and benefits of personnel supplied by a

help supply services firm and the firm

using the personnel, it is the help

supply services firm that is responsible

for paying the employees’ wages and

benefits. The revenues paid to the help

supply services firm by the firm using

the employees legally belong to the help

supply services firm even though the

help supply services firm has a legal

obligation to pay its employees. This is

35812 Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations

a much different arrangement than

holding funds in trust for an unaffiliated

third party. Such trust funds are legally

owned by the unaffiliated third party,

but collected and distributed by the

holder on the owner’s behalf. An

association representing over 1,400

firms in the help supply services

industry also rejected the notion that

help supply services firms should be

viewed as agents. It also stated that the

wages and benefits of the help supply

services employees are not earmarked

for the purpose of paying employees.

Finally, we recognize that the help

supply service firms often apply a rate

to labor costs in arriving at a price for

supplying personnel to a client. The

comment estimated an average rate for

the industry. However, there does not

appear to be a standard rate provided by

the industry, which is one necessary

characteristic for allowing an exclusion

of certain pass-through revenues.

Rather, the comment itself

acknowledged that rates vary by firm.

An average rate charged by firms in the

industry is not the same concept as a

common or standard rate applied by

firms throughout the industry. Also, we

note that many industries operate on a

cost plus mark-up basis, but are not

agents and their costs are not recognized

as ‘‘pass-through’’ funds.

Impact of the Proposal on Prior

Findings of Affiliation

One comment raised the issue of prior

findings of affiliation between a

franchisor and franchisee in the staffing

industry where the franchisor controlled

the ‘‘associates’’ of the franchisee. His

question was how would the proposal to

exempt ‘‘Professional Employee

Organizations’’ (PEOs) from the

presumption of affiliation with the firms

to whom they supply personnel affect

these earlier decisions. Changing the

size standard will not affect prior or

subsequent findings of affiliation. The

clarification regarding PEOs is narrowly

written so as not to impact findings of

affiliation based on control or other

grounds. It addresses the issue of

affiliation between the firm using the

employees and the PEO supplying the

employees under a co-employment

arrangement. It does not address the

issue of where or how the PEO obtains

the employees it subsequently provides

to the firm. In many cases, they were

formerly the sole employees of the firm

using their services before the firm

contracted out the professional

administration of its employees. If the

PEO obtains its employees from a

franchisor, affiliation could still be

found between the franchisor and the

franchisee where a franchise agreement

gives control of the franchisee’s

‘‘associates’’ to the franchisor. In such

cases, the receipts or employment of

both the franchisor and the franchisee

must be included in the calculation.

This is a separate issue from what the

clarification addresses, namely, how the

firm (using the employees) calculates its

size.

Affiliation and Professional Employer

Organizations

SBA is also clarifying the language in

13 CFR 121.103(b)(4). Section (b)

discusses exclusions from affiliation

rules while paragraph (4) specifically

excludes business concerns that lease

employees. We are inserting

‘‘Professional Employee Organizations

(PEOs)’’ in this section along with

leasing companies. Their relationship

with the firms to whom they provide

employees and staffing services are

similar, yet questions arise from time-totime because PEOs were not specifically

mentioned in the exclusion. SBA will

not find a firm affiliated with a leasing

company or PEO merely because it uses

the services of a leasing company or

PEO. However, SBA might find

affiliation based on other conditions.

Nothing in the clarification of the

exclusions to the affiliation rule is

intended to change the way a firm must

count its employees when determining

size. All employees must be counted;

whether permanent, part-time,

temporary, leased or covered by a

contract with a PEO. How a firm obtains

its staffing is a business decision, and

size standards are not intended to

influence its decision in that regard.

Compliance With Executive Orders

12866, 12988, and 13132, the

Regulatory Flexibility Act (5 U.S.C.

601–612), and the Paperwork

Reduction Act (44 U.S.C. 3501 et seq.)

SBA has determined that this rule

will not be a significant rule within the

meaning of Executive Order 12866 since

it will not have an impact of $100

million or more. The total amount of

Federal procurement and SBA

guaranteed loans combined is less than

$160 million to this industry annually,

and a change to the size standard is

unlikely to significantly affect these

programs.

For purposes of the Regulatory

Flexibility Act, this rule would not have

a substantial impact on a significant

number of small entities. Although

potentially 576 additional firms could

gain small business status as a result of

this rule, only a very small percentage

of firms in the industry compete for

Federal procurements or obtain

guaranteed loans through SBA’s

financial assistance programs.

For the purpose of the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq.,

SBA has determined that this rule

would not impose new reporting or

record-keeping requirements other than

those already required of SBA.

For purposes of Executive Order

13132, SBA has determined that this

rule does not have any federalism

implications warranting the preparation

of a Federalism Assessment.

For purposes of Executive Order

12988, SBA certifies that this rule is

drafted, to the extent practicable, in

accordance with the standards set forth

in Section 3 of that order.

List of Subjects in 13 CFR Part 121

Government procurement,

Government property, Grant programsbusiness, Loan programs-business,

Small businesses.

For reasons stated in the preamble,

SBA is amending part 121 of 13 CFR as

follows:

PART 121—SMALL BUSINESS SIZE

REGULATIONS

1. The authority citation of Part 121

continues to read as follows:

Authority: 15 U.S.C. 632(a), 634(b)(6),

637(a), 644(c), and 662(5); and Sec. 304, Pub.

L. 103–403, 108 Stat. 4175, 4188.

2. Revise § 121.103(b)(4), to read as

follows:

§ 121.103 What is affiliation?

* * * * *

§ 121.201 Table [Amended]

(b) * * *

(4) Business concerns which lease

employees from concerns primarily

engaged in leasing employees to other

businesses or which enter into a coemployer arrangement with a

Professional Employer Organization

(PEO) are not affiliated with the leasing

company or PEO solely on the basis of

a leasing agreement.

* * * * *

3. In § 121.201, in the table ‘‘SIZE

STANDARDS BY SIC INDUSTRY,’’

under the heading DIVISION I—

SERVICES, add a new entry for SEC

Code 7363 in numerical order to read as

follows:

Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations 35813

SIZE STANDARDS BY SIC INDUSTRY

SIC code and description

Size standards in number of employees or

millions of

dollars

*****

DIVISION I—SERVICES ........ $5.0

*****

EXCEPT:

*****

7363 Help Supply Services .................................. 10.0

*****

Dated: May 30, 2000.

Aida Alvarez,

Administrator.

[FR Doc. 00–14015 Filed 6–5–00; 8:45 am]

BILLING CODE 8025–01–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 25

[Docket No. NM170; Special Conditions No.

25–162–SC]

Special Conditions: Raytheon Aircraft

Company Model 4000; High Intensity

Radiated Fields (HIRF)

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Final special conditions.

SUMMARY: These special conditions are

issued for the Raytheon Aircraft

Company Model 4000 airplane. This

airplane will utilize new avionics/

electronics and electrical systems that

will perform critical functions. The

applicable regulations do not contain

adequate or appropriate safety standards

for the protection of these systems from

the effects of high-intensity radiated

fields (HIRF). These special conditions

contain the additional safety standards

that the Administrator considers

necessary to establish a level of safety

equivalent to that provided by the

existing airworthiness standards.

EFFECTIVE DATE: July 6, 2000.

FOR FURTHER INFORMATION CONTACT:

Mark Quam, FAA, Standardization

Branch, ANM–113, Transport Airplane

Directorate, Aircraft Certification

Service, 1601 Lind Avenue SW.,

Renton, Washington, 98055–4056;

telephone (425) 227–2145; facsimile

(425) 227–1149.

SUPPLEMENTARY INFORMATION:

Background

On May 3, 1996, Raytheon Aircraft

Company, PO Box 85, Wichita, Kansas

67201–0085, submitted an application

for a new type certificate for the

Raytheon Model 4000. The significant

aircraft design features include an 84

inch diameter graphite composite

fuselage, new metal wing and a graphite

composite skin on aluminum substructure empennage. The Model 4000

is 69 feet, 2 inches in length and 61 feet,

9 inches in width. It has a Primus Epic

flightdeck, and two aft mounted

PW308A engines. There are 12 forwardfacing seats and a forward observer seat.

The significant systems features include

a new state of the art integrated

avionics/electronics and electrical

systems suite. The avionics/electronics

and electrical systems installed in this

airplane have the potential to be

vulnerable to high-intensity radiated

fields (HIRF) external to the airplane.

Type Certification Basis

Under the provisions of 14 CFR

§ 21.17, Raytheon Aircraft Company

must show that the Model 4000 meets

the applicable provisions of part 25, as

amended by Amendment 25–1 through

Amendment 25–87 thereto.

If the Administrator finds that the

applicable airworthiness regulations

(i.e., part 25, as amended) do not

contain adequate or appropriate safety

standards for the Raytheon Aircraft

Company Model 4000 airplane because

of novel or unusual design features,

special conditions are prescribed under

the provisions of § 21.16.

In addition to the applicable

airworthiness regulations and special

conditions, the Model 4000 must

comply with the fuel vent and exhaust

emission requirements of part 34 and

the noise certification requirements of

part 36, and the FAA must issue a

finding of regulatory adequacy pursuant

to § 611 of Public Law 92–574, the

‘‘Noise Control Act of 1972.’’

Special conditions, as appropriate, are

issued in accordance with § 11.49, after

public notice, as required by §§ 11.28

and 11.29(b), and become part of the

type certification basis in accordance

with § 21.17(a)(2).

Special conditions are initially

applicable to the model for which they

are issued. Should the type certificate

for that model be amended later to

include any other model that

incorporates the same novel or unusual

design feature, the special conditions

would also apply to the other model

under the provisions of § 21.101(a)(1).

Novel or Unusual Design Features

The Raytheon Aircraft Company

Model 4000 airplanes will utilize new

avionics/electronics and electrical

systems that will perform critical

functions. These systems may be

vulnerable to HIRF external to the

airplane. The significant systems

features include a new state of the art

integrated avionics/electronics and

electrical systems suite. The avionics/

electronics and electrical systems

installed in this aircraft have the

potential to be vulnerable to highintensity radiated fields (HIRF) external

to the airplane.

Discussion

There is no specific regulation that

addresses protection requirements for

electrical and electronic systems from

HIRF. Increased power levels from

ground-based radio transmitters and the

growing use of sensitive avionics/

electronics and electrical systems to

command and control airplanes have

made it necessary to provide adequate

protection.

To ensure that a level of safety is

achieved equivalent to that intended by

the regulations incorporated by

reference, special conditions are needed

for the Raytheon Aircraft Company

Model 4000. These special conditions

require that new avionics/electronics

and electrical systems that perform

critical functions be designed and

installed to preclude component

damage and interruption of function

due to both the direct and indirect

effects of HIRF.

High-Intensity Radiated Fields (HIRF)

With the trend toward increased

power levels from ground-based

transmitters, plus the advent of space

and satellite communications coupled

with electronic command and control of

the airplane, and the use of composite

material in the airplane structure, the

immunity of critical avionics/

electronics and electrical systems to

HIRF must be established.

It is not possible to precisely define

the HIRF to which the airplane will be

exposed in service. There is also

uncertainty concerning the effectiveness

of airframe shielding for HIRF.

Furthermore, coupling of

electromagnetic energy to cockpitinstalled equipment through the cockpit

window apertures is undefined. Based

on surveys and analysis of existing HIRF

emitters, an adequate level of protection

exists when compliance with the HIRF

protection special condition is shown

with either paragraph 1, or 2 below: