Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Rules and Regulations 4643

§ 1044.08 Do you have to submit the

documents for classification review before

you give them to someone?

Yes, you must submit each document

with a classification or control marking

and any unmarked document generated

in a classified or controlled subject area

to the Inspector General. The Inspector

General forwards each document to the

Office of Nuclear and National Security

Information for a determination as to

whether the information in the

document is properly classified,

controlled, or may be released to the

public.

§ 1044.09 What do you do if you plan to

disclose classified or unclassified

controlled nuclear information orally rather

than by providing copies of documents?

You must describe in detail to the

Inspector General what information you

wish to disclose. The Inspector General

may require that the information to be

disclosed be put in writing in order to

ensure the Inspector General obtains

and provides accurate advice. The

Inspector General will consult with the

Office of Nuclear and National Security

Information who will provide you with

advice, through the Inspector General,

as to whether the information is

classified or controlled and any steps

needed to protect the information.

§ 1044.10 Will your identity be protected?

Yes, both the Inspector General and

the Office of Nuclear and National

Security Information must protect,

consistent with legal requirements, your

identity and any information about your

disclosure.

§ 1044.11 How do you protect the

information that you want to disclose?

To protect classified information and

unclassified controlled nuclear

information you plan to disclose, you

must:

(a) Only disclose the information to

personnel who possess the appropriate

clearance and need-to-know for the

information disclosed as required in 10

CFR part 710, after verifying any special

authorizations or accesses, such as

Sensitive Compartmented Information,

Special Access Program, and Weapon

Data information;

(b) Use only equipment (such as

computers or typewriters) that is

approved for classified processing for

the generation of classified documents;

(c) Mark documents as required by 10

CFR part 1045 (classified information),

10 CFR Part 1017 (unclassified

controlled nuclear information), or as

required by the Office of Nuclear and

National Security Information.

(d) Use only approved copiers to

reproduce documents;

(e) Store classified documents in

facilities approved by the U.S.

Government for the storage of classified

material;

(f) Use only approved destruction

devices to destroy classified documents;

(g) Use only appropriate secure

means, such as secure facsimile or

secure telephone, to provide classified

information orally or electronically

when transmitting or communicating

that information (e.g. the applicable

classified mailing address); and

(h) Follow any additional specific

instructions from the Office of

Safeguards and Security on how to

protect the information.

§ 1044.12 What procedures can you invoke

if you believe you have been discharged,

demoted, or otherwise discriminated

against as a reprisal for making a protected

disclosure?

If you believe you have been

discriminated against as a reprisal for

making a protected disclosure, you may

submit a complaint to the Director of the

Office of Hearings and Appeals, U.S.

Department of Energy, 1000

Independence Avenue, SW.,

Washington, DC 20585–0107, or you

may send your complaint to the

Director, Office of Hearings and

Appeals, by facsimile to FAX number

(202) 426–1415. In your complaint, you

should give your reasons for believing

that you have been discriminated

against as a reprisal for making a

protected disclosure, and include any

information you think is relevant to

your complaint. The Office of Hearings

and Appeals will conduct an

investigation of your complaint unless

the Director determines your complaint

is frivolous. The Director will notify you

in writing if your complaint is found to

be frivolous. If an investigation is

conducted, the Director will submit a

report of the investigation to you, to the

employer named in your complaint, and

to the Secretary of Energy, or the

Secretary’s designee. The Secretary, or

the Secretary’s designee, will take

appropriate action, pursuant to 42

U.S.C. 7239(k), to abate any

discriminatory actions taken as reprisal

for making a protected disclosure.

[FR Doc. 01–1328 Filed 1–17–01; 8:45 am]

BILLING CODE 6450–01–P

SMALL BUSINESS ADMINISTRATION

13 CFR Part 126

HUBZone Program

AGENCY: Small Business Administration.

ACTION: Final rule.

SUMMARY: This final rule amends the

regulations governing the HUBZone

Empowerment Contracting Program

(HUBZone program). In particular, this

rule clarifies the application of the

HUBZone program to state and local

governments, revises the definition of

the term ‘‘principal office,’’ eliminates

the program eligibility restrictions on

allowable affiliations of HUBZone small

business concerns, and eases the

program eligibility requirements and

procurement restrictions concerning

qualified HUBZone small business

concerns that operate as nonmanufacturers.

DATES: This rule is effective on February

20, 2001.

FOR FURTHER INFORMATION CONTACT:

Michael McHale, Associate

Administrator for the HUBZone

Program, (202) 205–6731 or

hubzone@sba.gov.

SUPPLEMENTARY INFORMATION: On

October 3, 2000, the Small Business

Administration (SBA) published in the

Federal Register, 65 FR 58963, a

proposed rule to amend its regulations

governing the HUBZone program. The

rule proposed to update the list of

Federal agencies covered by the

HUBZone program and clarify that the

program does not apply to contracts

awarded by state and local governments.

In addition, the rule proposed to amend

the definition of the term principal

office to accommodate service and

construction concerns, and to eliminate

the program eligibility restrictions on

allowable affiliations of HUBZone small

business concerns (SBCs). Finally, the

rule proposed to ease the program

eligibility requirements and

procurement restrictions concerning

qualified HUBZone small business

concerns that operate as nonmanufacturers. The proposed regulatory

amendments were intended to improve

the efficiency and effectiveness of the

program in light of SBA’s experience

since the effective date of the final

regulations implementing the HUBZone

Act of 1997, Title VI of the Small

Business Reauthorization Act of 1997,

Public Law 105–135.

Discussion of Comments on the

Proposed Rule

SBA received 22 timely comments

concerning the proposed amendments.

The vast majority of the comments

supported the proposed regulatory

amendments and applauded SBA’s

efforts to improve and clarify the

HUBZone regulations. In addition to

expressing support for the amendments,

a few commenters also recommended

some modifications to two of the

4644 Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Rules and Regulations

proposed amendments. As discussed

below, SBA carefully considered the

comments and recommendations in

developing this final rule. SBA received

a few comments addressing other

sections of the HUBZone regulations.

Because this final rule does not involve

any of those sections, SBA does not

discuss those comments here but will

consider them for future amendments to

the HUBZone regulations.

Four comments addressed SBA’s

proposal to revise § 126.101, to add

three additional Federal agencies to the

list of agencies covered by the HUBZone

Act and to clarify that the program does

not apply to state and local

governments. Three of those comments

supported those amendments. One of

the four commenters, however, pointed

out that Section 212 of Public Law 106–

113, which extended the HUBZone

program to the three Federal agencies

that SBA proposed to add to the list,

was effective for the fiscal year ending

September 30, 2000. That commenter

also noted that although the current

§ 126.101(b) makes clear that after

September 30, 2000, the HUBZone

program applies to all federal agencies

that hire one or more contracting

officers, it may be useful to retain the

current list of covered agencies under

§ 126.101(a) because it spells out the

program’s applicability to HUBZone

contracts awarded prior to September

30, 2000. SBA concurs with that

recommendation and therefore has

retained the original § 126.101(a)

without change and has adopted in full

a new paragraph (c) to § 126.101, as

proposed on October 3, 2000.

The comments concerning the

definition of ‘‘principle office,’’ were all

supportive of the proposed amendment

of that definition in § 126.103. Under

the proposed definition, ‘‘principle

office’’ would continue to be defined as

the location where the greatest number

of the concern’s employees perform

their work, except that for concerns

whose primary industry is service or

construction, the determination of

‘‘principal office’’ would exclude the

concern’s employees who perform their

work at separate job-site locations to

fulfill specific contract obligations.

In the preamble to the proposed rule,

SBA specifically requested public

comments on the proposed employee

exclusion provision for the construction

and service industries. Responding

commenters strongly supported that

exclusion for firms engaged in the

construction and service industries.

They agreed that the current definition

of ‘‘principal office’’ is appropriate for

manufacturing concerns, because such

firms tend to operate with fixed plant,

equipment and personnel tied to one

location, but that it did not make sense

for service or construction industries.

Accordingly, this final rule adopts the

definition of ‘‘principal office’’ as

proposed.

With one notable exception,

commenters likewise endorsed the

proposed amendment of § 126.204, to

eliminate the current restriction on

allowable affiliations of HUBZone SBCs

to other qualified HUBZone SBCs, 8(a)

Business Development program

participants and women-owned small

businesses. The one objecting

commenter expressed concern that the

proposed change would make it easier

for large businesses to set up ‘‘storefront’’ affiliates to abuse the program.

SBA disagrees. The proposed

amendment to § 126.204 makes clear

that the size of the HUBZone SBCs

when combined with the size of all its

affiliates must qualify as small under

part 121 of title 13 of the Code of

Federal Regulations. That requirement

safeguards against possible abuse by

large businesses in that regard.

Although supporting the proposed

elimination of the existing restrictions

on allowable affiliations, another

commenter recommended that SBA

relax the requirements of § 126.204

further by revising the directive for

aggregating the size of the HUBZone

SBC and its affiliates. That commenter

suggested that SBA should only

aggregate the ‘‘business activity

resulting from’’ the affiliation. SBA

declines to accept that recommendation.

Given the broad definition of affiliation

under § 121.103 of title 13 of the Code

of Federal Regulations, it is not feasible

to aggregate only the ‘‘business activity

resulting from’’ the affiliation. Further,

combining the size of a HUBZone

concern with all its affiliates is

consistent with governing size

regulations under part 121, and does not

impose undue burden on otherwise

qualified HUBZone SBCs. SBA believes

that a finding of affiliation should have

the same consequences in each of SBA’s

programs. In other words, a finding of

affiliation causes SBA to aggregate all of

the receipts or employees of each of the

affiliates. SBA does not look only at

certain types of receipts of a firm’s

affiliates, but rather, combines all

receipts of an affiliate from whatever

source. SBA believes that that general

rule is equally applicable to the

HUBZone program. Consequently, the

requirement for aggregating the size of a

HUBZone SBC and all its affiliates is

retained in this final rule.

Finally, SBA received several

comments which were supportive of the

proposed amendment to § 126.206 to

eliminate the eligibility requirement

that a non-manufacturer demonstrate

that it can provide products

manufactured by a qualified HUBZone

SBC, and the proposed amendment to

§ 126.601(d) to allow qualified

HUBZone SBCs that are nonmanufacturers to supply the product of

any business for HUBZone contracts at

or below $25,000 in total value. Three

of those commenters, however,

requested that SBA adopt a higher

maximum threshold of as high as

$100,000 and $250,000. SBA does not

believe that an increase in the proposed

$25,000 threshold is justified at this

time, since it would unfairly impact

qualified HUBZone SBCs that are

manufacturers. The $25,000 threshold

also parallels the regulatory scheme of

the Federal Acquisition Regulation, 48

CFR 19.502–2(c), which permits small

businesses in small business set-asides

where the anticipated cost of the

procurement will not exceed $25,000, to

provide the product or products of any

domestic firm.

As suggested by one commenter, the

final rule makes one clarification to the

provisions regarding HUBZone nonmanufacturers. In both § 126.206 and

§ 126.601(d), the final rule specifically

references 13 CFR 121.406(b)(1)(i) and

(ii), as the applicable definition of nonmanufacturer. Other than that

clarification, this final rule adopts

without change the proposed

amendments pertaining to HUBZone

non-manufacturers.

Application of the Final Rule

As indicated above, this rule is

effective thirty days from the date of

publication. To ensure that applicants to

and participants in the HUBZone

program are subject to the same

regulatory requirements, this final rule

applies to all HUBZone applications

submitted on or after the effective date

of this rule, to all pending HUBZone

applications, and to all currently

certified HUBZone SBCs.

Compliance With Executive Orders

12866, 12988, and 13132, the

Paperwork Reduction Act (44 U.S.C.

Ch. 35), and the Regulatory Flexibility

Act (5 U.S.C. 601–602)

The Office of Management and Budget

(OMB) reviewed this final rule as a

‘‘significant’’ regulatory action under

Executive Order 12866.

For purposes of Executive Order

12988, SBA has drafted this rule, to the

extent practicable, in accordance with

the standards set forth in section 3 of

that Order.

For purposes of Executive Order

13132, SBA has determined that this

Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Rules and Regulations 4645

final rule has no federalism implications

warranting the preparation of a

Federalism Assessment.

For purposes of the Paperwork

Reduction Act, 44 U.S.C. Ch. 35, SBA

has determined that this rule does not

impose new reporting or recordkeeping

requirements.

SBA has determined that this final

rule may have a significant beneficial

economic impact on a substantial

number of small entities within the

meaning of the Regulatory Flexibility

Act (RFA), 5 U.S.C. § 601, et seq. This

rule involves revising the definition of

‘‘principal office’’ and eliminating

certain requirements governing the

allowable affiliations of qualified

HUBZone SBCs and SBCs that operate

as non-manufacturers. The rule will

affect a large percentage of the over

30,000 SBCs that SBA believes are now

eligible or will become eligible for

certification as qualified HUBZone SBCs

over the life of the program.

Pursuant to the requirements of the

RFA, SBA prepared an Initial

Regulatory Flexibility Analysis (IRFA),

fully discussing the economic impact of

the amendments on small entities. SBA

submitted a copy of the IRFA to the

Chief Counsel for Advocacy of the Small

Business Administration. No comments

were submitted in response to the IRFA.

Since this final rule implements the

amendments without significant

substantive change, this final rule does

not change the nature of the economic

impact of the amendments on small

entities, nor alter the basis of SBA’s

IRFA. Accordingly, this Final

Regulatory Flexibility Analysis

incorporates by reference the entire

IRFA. A copy of the Final Regulatory

Flexibility Analysis and IRFA may be

obtained by contacting the Chief

Counsel for Advocacy of the Small

Business Administration, (202) 205–

6533.

The amendments that are the subject

of this rule will affect primarily those

SBCs that participate in Federal

procurements, that have affiliates, or

that are non-manufacturers. The

amendments will make it easier for

qualified SBCs to participate in the

program because it provides a definition

of ‘‘principal office’’ that accommodates

the fluid nature of the construction and

service industries and it allows

qualified HUBZone SBCs to have any

affiliates provided that they, together

with their affiliates, do not exceed their

applicable size standard under part 121

of title 13 of the Code of Federal

Regulations. This final rule also will

facilitate the certification of qualified

HUBZone SBCs and open the door to

more HUBZone contracts by eliminating

the eligibility requirement that nonmanufacturers must demonstrate that

they can supply the goods of a qualified

SBC as a prerequisite for program

certification, and by exempting nonmanufacturers from making that

showing when submitting offers to

supply goods for HUBZone contracts

with a total value of $25,000 or less.

In addition, this final rule does not

duplicate, overlap or conflict with

relevant Federal regulations. SBA

reviewed several alternatives to the

amendments implemented by this rule

and believes that the amendments are in

the best interest of SBCs and the

HUBZone Program.

(Catalog of Federal Domestic Assistance

Programs, No. 59,009)

List of Subjects in 13 CFR Part 126

Administrative practice and

procedure, Government procurement,

Reporting and recordkeeping

requirements, Small businesses.

Accordingly, for the reasons set forth

above, SBA amends 13 CFR part 126, as

follows:

PART 126—HUBZONE PROGRAM

[AMENDED]

1. Revise the authority citation for 13

CFR part 126 to read as follows:

Authority: 15 U.S.C. 632(a); Pub. L. 105–

135 sec. 601 et seq., 111 Stat. 2592.

2. Amend § 126.101 by adding a new

paragraph (c) to read as follows:

§ 126.101 Which government departments

or agencies are affected directly by the

HUBZone program?

* * * * *

(c) The HUBZone program does not

apply to contracts awarded by state and

local governments. However, state and

local governments may use the List of

qualified HUBZone SBCs to identify

qualified HUBZone SBCs for similar

programs authorized under state or local

law.

3. Amend § 126.103 to revise the

definition of ‘‘principal office’’ to read

as follows:

§ 126.103 What definitions are important in

the HUBZone program?

* * * * *

Principal office means the location

where the greatest number of the

concern’s employees at any one location

perform their work. However, for those

concerns whose ‘‘primary industry’’ (see

13 CFR 121.107) is service or

construction (see 13 CFR 121.201), the

determination of principal office

excludes the concern’s employees who

perform the majority of their work at

job-site locations to fulfill specific

contract obligations.

* * * * *

4. Revise § 126.204 to read as follows:

§ 126.204 May a qualified HUBZone SBC

have affiliates?

A concern may have affiliates

provided that the aggregate size of the

concern and all its affiliates is small as

defined in part 121 of this title.

5. Revise § 126.206 to read as follows:

§ 126.206 May non-manufacturers be

certified as qualified HUBZone SBCs?

Non-manufacturers (referred to in the

HUBZone Act of 1997 as ‘‘regular

dealers’’) may be certified as qualified

HUBZone SBCs if they meet all of the

requirements set forth in § 126.200. For

purposes of this part, a ‘‘nonmanufacturer’’ is defined in

§ 121.406(b)(1)(i) and (ii) of this title.

6. Amend § 126.601 by revising

paragraph (d) to read as follows:

§ 126.601 What additional requirements

must a qualified HUBZone SBC meet to bid

on a contract?

* * * * *

(d) A qualified HUBZone SBC which

is a non-manufacturer may submit an

offer on a HUBZone contract for

supplies if it meets the requirements of

the non-manufacturer rule set forth at

§ 121.406(b)(1)(i) and (ii) of this title,

and if the small manufacturer providing

the end item for the contract is also a

qualified HUBZone SBC. However, for

HUBZone contracts at or below $25,000

in total value, a qualified HUBZone SBC

may supply the end item of any

manufacturer, including a large

business.

Dated: January 10, 2001.

Aida Alvarez,

Administrator.

[FR Doc. 01–1543 Filed 1–17–01; 8:45 am]

BILLING CODE 8025–01–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 2000–CE–57–AD; Amendment

39–12073; AD 2001–01–03]

RIN 2120–AA64

Airworthiness Directives; British

Aerospace HP137 Mk1, Jetstream

Series 200, and Jetstream Models 3101

and 3201 Airplanes

AGENCY: Federal Aviation

Administration, DOT.