[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:
<bullet> Working with its financial partners to improve small 
            businesses' access to capital through SBA's loan and 
            venture capital programs;
<bullet> Providing technical assistance to small businesses through its 
            resource partners;
<bullet> Increasing contracting and business opportunities for small 
            businesses;
<bullet> Providing affordable, timely and easily accessible financial 
            assistance to businesses, homeowners and renters after a 
            disaster; and
<bullet> 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: <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="f2989d97dc9e9d96969db2819093dc959d84">[email protected]</a>
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

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