36106 Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Rules and Regulations 

funds from another account held 

individually or jointly by the member, so 

long as the credit union prominently states 

that any additional balance includes these 

additional overdraft amounts. The credit 

union may not simply state, for instance, that 

the second balance is the member’s 

‘‘available balance,’’ or contains ‘‘available 

funds.’’ Rather, the credit union should 

provide enough information to convey that 

the second balance includes these amounts. 

For example, the credit union may state that 

the balance includes ‘‘overdraft funds.’’ 

Where a member has opted out of the credit 

union’s discretionary overdraft service, any 

additional balance disclosed should not 

include funds credit unions provide under 

that service. Where a member has opted out 

of the credit union’s discretionary overdraft 

service for some, but not all transactions, e.g., 

the member has opted out of overdraft 

services for ATM and debit card transactions, 

a credit union that includes funds from its 

discretionary overdraft service in the balance 

should convey that the overdraft funds are 

not available for all transactions. For 

example, the credit union could state that 

overdraft funds are not available for ATM 

and debit card transactions. 

3. Automated systems. The balance 

disclosure requirement in § 707.11(c) applies 

to any automated system through which the 

member requests a balance, including, but 

not limited to, a telephone response system, 

the credit union’s Internet site, or an ATM. 

The requirement applies whether the credit 

union discloses a balance through an ATM 

owned or operated by the credit union or 

through an ATM not owned or operated by 

the credit union, including an ATM operated 

by an entity that is not a financial institution. 

If the balance is obtained at an ATM, the 

requirement also applies whether the balance 

is disclosed on the ATM screen or on a paper 

receipt. 

* * * * * 

[FR Doc. E9–17313 Filed 7–21–09; 8:45 am] 

BILLING CODE 7535–01–P 

SMALL BUSINESS ADMINISTRATION 

13 CFR Parts 115 and 121 

RIN 3245–AF94 

American Recovery and Reinvestment 

Act: Surety Bond Guarantees; Size 

Standards 

AGENCY: U.S. Small Business 

Administration. 

ACTION: Interim final rule with request 

for comments. 

SUMMARY: This interim final rule 

implements provisions of the American 

Recovery and Reinvestment Act of 2009 

that pertain to the Surety Bond 

Guaranty (SBG) Program. Until 

September 30, 2010, the U.S. Small 

Business Administration (SBA) is 

authorized to guarantee bonds on 

Contracts of up to $5,000,000 (or up to 

$10 million based upon the certification 

of a Federal contracting officer). SBA is 

further authorized, until September 30, 

2010, to partially deny liability under its 

bond guarantee, but cannot deny 

liability in whole or even in part on the 

basis of material facts disclosed to SBA 

in a guarantee application submitted 

under the Prior Approval Program. In 

addition to implementing these 

authorities, this rule also revises the size 

standard for participation in the SBG 

Program, and makes several changes 

primarily for clarification purposes. 

DATES: This rule is effective July 22, 

2009. 

Comment Date: Comments must be 

received on or before August 21, 2009. 

ADDRESSES: You may submit comments, 

identified by RIN: 3245–AF94, by any of 

the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Office of Surety Guarantees, 

Suite 8600, 409 Third Street, SW., 

Washington, DC 20416. 

• Hand Delivery/Courier: Office of 

Surety Guarantees, 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 Office 

of Surety Guarantees, 409 Third Street, 

SW., Washington, DC 20416 or send an 

email to Office of Surety Guarantees. 

Highlight the information that you 

consider to be CBI and explain why you 

believe SBA should hold this 

information as confidential. SBA will 

review the information and make the 

final determination whether it will 

publish the information. 

FOR FURTHER INFORMATION CONTACT: 

Barbara J. Brannan, Office of Surety 

Guarantees, 202–205–6545. 

SUPPLEMENTARY INFORMATION: 

I. Background Information. 

The American Recovery and 

Reinvestment Act of 2009 (Recovery 

Act), Public Law 111–5, was enacted on 

February 17, 2009 to, among other 

things, promote economic activity by 

preserving and creating jobs and 

assisting those most impacted by the 

severe economic conditions facing the 

nation. The U.S. Small Business 

Administration is one of several 

agencies that will play a role in 

achieving these goals. As part of its 

recovery efforts, SBA will make several 

changes to the Agency’s SBG program, 

which will provide an enhanced level of 

benefits to the small business 

contractors and Surety companies that 

participate in the program. Under the 

SBG program SBA guarantees bid, 

payment and performance bonds for 

small contractors who cannot obtain 

bonds through regular commercial 

channels. SBA’s guarantee gives Surety 

Companies an incentive to provide 

bonding for small businesses, and 

thereby assists small businesses in 

gaining greater access to contracting 

opportunities. 

The various modifications to the SBG 

program as a result of the Recovery Act 

are temporary in nature and will expire 

on September 30, 2010. These 

modifications include an increase in the 

amount of the Contract or Order for 

which SBA is authorized to guarantee 

bonds; and revised standards for denial 

of liability on claims, and determining 

whether the small business contractor 

qualifies for a Recovery Act guaranteed 

bond. This interim final rule 

implements these changes and others as 

described in the following section-bysection analysis. 

II. Section-by-Section Analysis 

A new defined term, ‘‘Applicable 

Statutory Limit’’, has been added to 

§ 115.10. Currently, §§ 115.12(e)(1) and 

(3), 115.19(a), 115.31(d) and 115.68 all 

state that ‘‘$2,000,000’’ is the maximum 

dollar amount of a Contract for which 

SBA is authorized to guarantee bonds. 

Substitution of ‘‘Applicable Statutory 

Limit’’ for ‘‘$2,000,000’’ in each of these 

provisions will make future 

amendments unnecessary each time the 

statutory limit is revised. 

The definition of ‘‘Applicable 

Statutory Limit’’ also makes it clear that 

for any particular bond the Applicable 

Statutory Limit is the statutory limit in 

effect at the time a Prior Approval 

Surety’s request for a bond guarantee is 

approved by SBA or a Preferred Surety 

executes a bond, without regard to any 

subsequent changes in that limit. 

However, if SBA guaranteed a Bid Bond, 

the Applicable Statutory Limit for the 

related Final Bonds, including Ancillary 

Bonds, is the one in effect when SBA 

guaranteed the Bid Bond. 

The Recovery Act temporarily raises 

the Applicable Statutory Limit from 

$2,000,000 to $5,000,000 and further 

authorizes SBA to guarantee bonds on 

Federal Contracts in excess of 

$5,000,000 (up to $10,000,000) if a 

Federal contracting officer certifies the 

need for the guarantee; but SBA’s 

authority to guarantee bonds on any 

Contract in excess of $2,000,000 is 

scheduled to expire on September 30, 

2010. Restrictions on bond guarantees 

for Contracts in excess of $2,000,000 are 


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described below under the revisions to 

section 115.12(e) (3). 

In addition, a new definition, ‘‘Order’’ 

has been added to § 115.10 in order to 

make it clear that SBA is authorized to 

guarantee bonds on indefinite delivery 

Contracts (definite quantity, indefinite 

quantity, or requirement Contracts), and 

that task orders or delivery orders 

issued under such Contracts will be 

subject to the same rules as all other 

Contracts, except where otherwise 

stated. This term is also added to the 

present definition of ‘‘Contract.’’ 

Section 115.12(b) is revised to remove 

the reference to the address of Surety 

Association of America, which is no 

longer current. Removal will make it 

unnecessary to revise the regulation 

each time the Association moves. 

Section 115.12(e) is revised to include 

the new defined term ‘‘Order’’ and to 

address issues involving the 

determination of the amount of the 

Contract. In particular, section 

115.12(e)(1) now clarifies how to 

determine the Contract amount for fixed 

price, requirements, and indefinite 

quantity Contracts. For fixed price 

contracts, the amount of the contract is 

the price excluding any options. The 

amount of the contract, for requirements 

contracts, is the price of the total 

estimated quantity to be ordered. For an 

indefinite quantity Contract, the amount 

of the Contract is the price of the 

specified minimum quantity to be 

ordered and, separately, for each Order 

under the indefinite quantity Contract, 

the price of the Order. 

Section 115.12(e)(2) addresses the 

question of when construction Contracts 

and/or Orders for supplies and services 

should be aggregated for purposes of 

determining whether the Principal’s 

total obligation exceeds the Applicable 

Statutory Limit. 

Regardless of the penal sum of the 

bond in question, SBA has no authority 

to guarantee bonds on any Contract that 

exceeds the Applicable Statutory Limit 

at the time of bond execution. For the 

purpose of determining whether SBA’s 

guarantee of a particular bond would 

exceed its authority, ‘‘Contract’’ means 

in this context the Principal’s total duty 

to the Obligee in connection with a 

single project, regardless of the number 

of formally separate contracts, bonded 

or not, that set forth the respective 

obligations of the Principal and Obligee. 

Section 115.12(e)(2) addresses this 

question. 

Section 115.12(e)(2)(i) restates SBA’s 

long-standing rule with respect to 

construction Contracts in which 

substantially all the elements of the 

respective obligations of the Principal 

and Obligee—the project—are known 

and set forth in considerable detail 

before the bonds are executed. If the 

stated compensation due the Principal 

does not then exceed the Applicable 

Statutory Limit, subsequent 

modifications that increase the Contract 

price will not, as such, invalidate SBA’s 

guarantee obligation; even modifications 

that take the bonded Contract’s price 

over the Applicable Statutory Limit will 

do no more than reduce SBA’s 

guarantee percentage. However, if for 

any reason the Principal and Obligee 

choose before the bond is executed to 

set forth their respective total obligation 

in two or more separate documents, 

SBA must determine whether they are 

truly separate Contracts or parts of the 

same project. Section 115.12(e)(2)(i) sets 

forth the standards governing this 

determination. 

In the case of service or supply 

Contracts and/or Orders, two or more 

separate Contracts or Orders will be 

aggregated only if it is determined, 

following SBA discussion with the 

contracting official awarding the 

Contracts or Orders, that a single 

Contract or Order could reasonably have 

satisfied the Obligee’s requirement. 

Such discussion with the contracting 

official might be prompted by the 

simultaneous award of two or more 

Contracts or Orders for the same 

services or supplies to the same 

Principal, multiple awards for the same 

services or supplies to the same 

Principal within a very short timeframe, 

or a pattern of such awards to the same 

Principal over an extended period. 

Section 115.12(e)(3) is revised to 

delete the current text because the 

relationship between separate Orders 

under an indefinite (multi-year) 

Contract and the Applicable Statutory 

Limit is now addressed in section 

115.12(e)(2) and because the 

relationship between the Contract or 

Order Amount and the penal sum of the 

bond is addressed in § 115.19(a). 

SBA has added a new paragraph (3), 

Contracts or Orders in excess of 

$2,000,000, that implements the 

restrictions on the use of Recovery Act 

funds under Section 1604 of the 

Recovery Act, Public Law 111–5, 

February 17, 2009. Section 1604 

provides that none of the funds 

appropriated or otherwise made 

available under the Recovery Act may 

be used by any State or local 

government, or any private entity, for 

any casino or other gambling 

establishment, aquarium, zoo, golf 

course, or swimming pool. Guidance 

issued by the Office of Management and 

Budget provides that ‘‘[i]n exercising 

their available discretion to commit, 

obligate or expend funds under the 

Recovery Act for grants and other forms 

of Federal financial assistance, 

executive departments and agencies, to 

the extent permitted by law, shall not 

approve or otherwise support funding 

for projects that are similar to those 

described in section 1604 of Division A 

of the Recovery Act.’’ (Memorandum for 

the Heads of Executive Departments and 

Agencies, March 20, 2009, p. 2. 

available at http://www.whitehouse.gov/ 

the_press_office/Memorandum-for-theHeads-of-Executive-Departments-andAgencies-3-20-09/) Accordingly, SBA 

bond guarantees that are funded with 

Recovery Act funds (i.e., bond 

guarantees for Contracts greater than $2 

million) may not be extended if the 

Obligee is an entity primarily engaged 

in these activities or the work required 

by the Contract is part of a project for 

the construction, renovation, or 

improvement of any casino or other 

gambling establishment, aquarium, zoo, 

golf course, or swimming pool. 

SBA also has added a new paragraph 

(4), Federal Contracts or Orders in 

excess of $5,000,000, that establishes 

the process for guarantees of bonds on 

such Contracts. 

SBA has revised section 115.19 to 

reflect the Recovery Act’s temporary 

provisions regarding SBA’s authority to 

deny liability under its guarantee. The 

introductory language to section 115.19 

is revised to include SBA’s temporarilygranted discretion to deny liability in 

part. Under prior law, SBA had no 

discretion to accept partial liability. 

SBA was completely discharged from all 

liability in the event of certain 

circumstances set forth in the Small 

Business Act, the regulations or in the 

general law of contracts and suretyship, 

regardless of the circumstances of any 

particular case. In the case of a bond 

guaranteed by SBA between February 

17, 2009 and September 30, 2010, 

inclusive, SBA has discretion to accept 

liability in part under circumstances 

that would previously discharge SBA 

completely. 

Part 121 is revised at section 

121.301(d) to incorporate the Recovery 

Act provision specifying, for the period 

starting February 17, 2009 and ending 

on September 30, 2010, that a concern 

is small only if it, together with its 

affiliates, meets the size standard 

corresponding to the NAICS code for the 

primary industry in which such 

business concern together with its 

affiliates is engaged. Section 508 of the 

Recovery Act amended Section 410 of 

the Small Business Investment Act by 

adding a new, but temporary, size 

standard for this program, prefaced by 

the words ‘‘Notwithstanding any other 

provision of law or any rule, regulation, 


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or order of the Administration * * *.’’ 

Accordingly, subparagraphs (d)(1), (2) 

and (3) are temporarily superseded. 

III. Justification for Publication as 

Interim Final Rule. 

In general, before issuing a final rule, 

SBA publishes the rule for public 

comment in accordance with the 

Administrative Procedure Act (APA), 5 

U.S.C. 553. The APA provides an 

exception from the general rule where 

the agency finds good cause to omit 

public participation. 5 U.S.C. 

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

requirement is satisfied when prior 

public participation can be shown to be 

impracticable, unnecessary, or contrary 

to the public interest. Under such 

circumstances, an agency may publish 

an interim final rule without first 

soliciting public comment. 

In enacting the good cause exception 

to standard rulemaking procedures, 

Congress recognized that emergency 

situations arise where an agency must 

issue a rule without public 

participation. The current turmoil in the 

financial markets is having a negative 

effect on the availability of financing for 

small business, including diminished 

access to the commercial surety bond 

market. The bonding capacity of surety 

companies is substantially reduced, 

making them more risk-averse; and 

small concerns that were formerly 

acceptable risks are now seen as 

questionable. To enable these small 

concerns to continue to obtain the 

bonding they formerly obtained in the 

commercial market Congress has 

temporarily expanded the surety bond 

guarantee program. The beneficial 

effects of this expansion on these small 

concerns and on the sureties that will 

bond them are obvious. Less obviously, 

but no less significantly, the parties that 

will contract with them for goods and 

services will benefit because they will 

be obtaining these goods and services at 

the lowest price. 

SBA finds that good cause exists to 

publish this rule as an interim final rule 

in light of the urgent need to help small 

businesses sustain and survive during 

this economic downturn. Advance 

solicitation of comments for this 

rulemaking would be impracticable and 

contrary to the public interest. 

Although this rule is being published 

as an interim final rule, comments are 

solicited from interested members of the 

public. These comments must be 

submitted on or before August 21, 2009. 

SBA will consider these comments and 

the need for making any amendments as 

a result of these comments. 

IV. Justification for Immediate Effective 

Date 

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). The 

purpose of this provision is to provide 

interested and affected members of the 

public sufficient time to adjust their 

behavior before the rule takes effect. 

SBA finds that there is good cause for 

making this rule effective immediately 

instead of observing the 30-day period 

between publication and effective date. 

The provisions of this rule relating to 

SBA’s authority to guarantee bonds on 

Contracts in excess of $2,000,000, its 

authority to accept partial liability on its 

guarantee, and its authority to deny 

liability when a Prior Approval Surety’s 

applications has set forth the material 

facts upon which a denial would be 

based, will expire on September 30, 

2010. The statutory authority for the 

size standard this rule establishes will 

also expire on September 30, 2010. 

These provisions do not require any 

adjustment to the public’s behavior; 

moreover, delaying implementation of 

the rule could have serious impact on 

the nation’s small businesses 

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. 601–612). 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that this rule 

constitutes a significant regulatory 

action for purposes of Executive Order 

12866. 

Executive Order 12988 

This action meets applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988, Civil 

Justice Reform, to minimize litigation, 

eliminate ambiguity, and reduce 

burden. This rule has no preemptive 

effect and is retroactive only to the 

extent that certain of the changes 

required by the Recovery Act will apply 

to bond guarantees issued on or after 

February 17, 2009—before the effective 

date of this interim final rule. 

Executive Order 13132 

This rule does not have federalism 

implications as defined in Executive 

Order 13132. It 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 

layers of government, as specified in the 

Executive Order. As such it does not 

warrant the preparation of a Federalism 

Assessment. 

Paperwork Reduction Act 

SBA has determined that this rule 

imposes additional reporting and 

recordkeeping requirements under the 

Paperwork Reduction Act, 44 U.S.C. 

Chapter 35, which require amendment 

to an existing information collection, 

Surety Bond Guarantee Assistance, 

OMB Control #3245–0007. This 

information collection is currently used 

to gather information necessary for 

processing applications for bond 

guarantees and requests for claim 

reimbursement. As a result of the 

Recovery Act changes to the SBG 

program, this information collection 

will be modified to collect additional 

information that will enable SBA to 

determine whether Recovery Act funds 

can be used for cost of bond guarantees, 

and also to track the use of those funds 

to meet reporting requirements under 

the Recovery Act. The information 

collection currently consists of 6 forms. 

These forms are available in paper and 

electronic formats. SBA will modify 3 of 

these forms and add a new form to the 

collection: 

(1) Form 990, Surety Bond Guarantee 

Agreement and Form will be modified 

to add language to the certification 

portion of the form. This language is 

intended to ensure that the bond 

guarantee is not approved for a small 

business that is performing work for an 

obligee or on a contract that is related 

to the restricted uses of funds included 

in the Recovery Act, including casinos 

or other gambling establishments, 

aquariums, zoos, golf courses, or 

swimming pools. 

(2) On Form 994, Application for 

Surety Bond Guarantee Assistance, the 

small business’s DUNS number is now 

being collected in Part I (Business 

Information) to provide data necessary 

for Federal Funding Accountability and 

Transparency Act reporting; the contract 

NAICS code, number of employees and 

number of jobs created and retained is 

being added to Part III (Contract 

Information) to provide statistical data 

that would enable SBA to report clearly 

on Recovery Act bonds versus non 

Recovery Act bonds; and language in 

Parts II (Principal Information) and V 

(Applicant’s Certification) is being 

modified for clarification purposes. 

(3) Form 994H, Default Report, Claim 

Reimbursement and Record of 

Administrative Action, is also being 

modified to add a certification regarding 

the Surety’s compliance with SBG 


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program regulations and other 

requirements, including the Recovery 

Act requirements. 

(4) A new form, 994R, Application for 

Surety Bond Guarantee—Under the 

Recovery and Reinvestment Act—is also 

being added to the collection. This form 

is essentially a rider to Form 994, and 

will be completed only if the bond is 

related to the Recovery Act, determined 

if the original contract amount is over 

$2 million. The additional information 

collected on this rider is needed to 

fulfill reporting requirements on the 

outcomes and metrics related to the 

Recovery Act. The information that will 

be collected on this rider includes a 

disclosure about contract amounts in 

excess of $5 million, and whether 

certification has been obtained from the 

applicable Contracting Officer regarding 

such contract amounts. The rider also 

requires the small business applicant to 

assert whether contract involves 

construction, renovation, or operation of 

a casino or other gambling 

establishment, golf course, zoo, 

aquarium or swimming pool. 

SBA has submitted this information 

collection to the Office of Management 

and Budget (OMB) for review and 

approval under the emergency 

processing procedures in 5 CFR 

1320.13. If OMB approves the request 

for emergency approval, SBA will 

submit this information collection for 

standard review following the 

emergency approval period. Any 

comments received as a result of this 

publication will be addressed at that 

time. 

The title, description and number of 

respondents, estimated annual cost and 

hour burdens imposed on the 

respondents as a result of this collection 

of information are outlined below. SBA 

invites comments on: (1) Whether the 

changes to the described collection of 

information are necessary for the proper 

performance of SBA’s operation of the 

Surety Bond program, including 

whether the information will have 

practical utility; (2) the accuracy of 

SBA’s estimate of the burden of the 

collection of information; (3) ways to 

enhance the quality, utility and clarity 

of the information to be collected; and 

(4) ways to minimize the burden of the 

collection of information on 

respondents, including through the use 

of automated techniques, when 

appropriate, and other forms of 

information technology. 

Please send comments by the closing 

date for this interim final rule to SBA 

Desk Officer, Office of Management and 

Budget, Office of Information and 

Regulatory Affairs, 725 17th Street, 

NW., Washington, DC 20503, and to 

Barbara J. Brannan, Office of Surety 

Guarantees, Small Business 

Administration, 409 Third Street, SW., 

Washington, DC 20416. 

Title: Surety Bond Guarantee 

Assistance. 

OMB Control Number: 3245–0007. 

Form Numbers—SBA Forms, 990, 

991, 994, 994B, 994F and 994H, 

[Current] and Form 994R [New]. 

Description of Respondents: (i) The 

small business contractor completes 

Forms 991, 994, 994F, and 994—Rider; 

(ii) The Surety Agent completes Forms 

990, 994B, and 994H. 

Total Estimated Number of 

Respondents for all forms: 1,050: (Small 

businesses—700; Surety Agents—350). 

Frequency of Responses: On 

occasion—per application for guarantee 

on surety bond, or for claim 

reimbursement. 

Total Estimated Number of Responses 

for all forms: 17,965. This estimate 

reflects an increase of 49 bonds using 

Recovery Act funds (i.e., bonds for 

Contracts or Orders in excess of $2M 

and up to $10M). 

Total Estimated Hour Burden: 2,001. 

This total reflects an estimated increase 

of 42 hours due to the changes pursuant 

to the Recovery Act. 

Regulatory Flexibility Act 

Because this rule is an interim final 

rule, there is no requirement for SBA to 

prepare a Regulatory Flexibility Act 

(RFA) 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 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 115 

Claims, Guarantee authority, Surety 

bond guarantees. 

13 CFR Part 121 

Size eligibility provisions and 

standards. 

■ For the reasons stated in the preamble, 

SBA amends 13 CFR parts 115 and 121 

as follows: 

PART 115—SURETY BOND 

GUARANTEE 

■ 1. The authority citation for 13 CFR 

part 115 is revised to read as follows: 

Authority: 5 U.S.C. app. 3, 15 U.S.C. 687b, 

687c, 694a, 694b, 694b note, Pub. L. 106–554; 

and Pub. L. 108–447, Div. K, Sec. 203. 

■ 2. Amend § 115.10 as follows: 

■ (a) Revise the first sentence of the 

definition of the word ‘‘Contract’’; and 

■ (b) Add new definitions of 

‘‘Applicable Statutory Limit’’ and 

‘‘Order’’ in alphabetical order. 

§ 115.10 Definitions. 

* * * * * 

Applicable Statutory Limit means the 

maximum amount of any Contract, or 

Order, for which Section 411(a) of the 

Small Business Investment Act, as 

amended from time to time, authorizes 

the SBA to guarantee, or commit to 

guarantee, a Bid Bond, Payment Bond, 

Performance Bond, or Ancillary Bond. 

The Applicable Statutory Limit from 

February 17, 2009 through September 

30, 2010, is $5,000,000; provided, 

however, that during this period the 

Applicable Statutory Limit is 

$10,000,000 for a particular Contract or 

Order if a contracting officer of a 

Federal agency certifies in writing that 

a guarantee in excess of $5,000,000 is 

necessary. 

* * * * * 

Contract means a written obligation of 

the Principal, including an Order, 

requiring the furnishing of services, 

supplies, labor, materials, machinery, 

equipment, or construction. * * * 

* * * * * 

Order means a task order for services 

or delivery order for supplies issued 

under an indefinite delivery Contract 

(definite quantity, indefinite quantity, or 

requirements). 

* * * * * 

■ 3. Amend § 115.12 by revising 

paragraphs (b) and (e), to read as 

follows: 

§ 115.12 General program policies and 

provisions. 

* * * * * 

(b) Eligibility of bonds. Bid Bonds and 

Final Bonds are eligible for an SBA 

guarantee if they are executed in 

connection with an eligible Contract, as 

defined in § 115.10, Definitions, and are 

of a type listed in the ‘‘Contract Bonds’’ 

section of the most recent Manual of 

Rules, Procedures, Classifications of the 

Surety Association of America. 

Ancillary Bonds may also be eligible for 

SBA’s guarantee. A performance bond 

must not prohibit a Surety from 

performing the Contract upon default of 

the Principal. 

* * * * * 

(e) Amount of Contract—(1) 

Determination of Amount of Contract. 

For a fixed price Contract, the amount 


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36110 Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Rules and Regulations 

of the Contract is the price excluding 

any options. For a requirements 

Contract, the amount of the Contract is 

the price of the total estimated quantity 

to be ordered under the Contract. For an 

indefinite quantity Contract, the amount 

of the Contract is the price of the 

specified minimum quantity to be 

ordered under the Contract and, for each 

Order issued under such Contract, the 

price of each such Order. The amount 

of the Contract or Order to be bonded 

must not exceed the Applicable 

Statutory Limit as of the date: 

(i) SBA approves a Prior Approval 

Surety’s request for a Bid Bond 

guarantee; 

(ii) A Preferred Surety Executes a Bid 

Bond; or 

(iii) The date Final Bonds (and any 

Ancillary Bonds) unrelated to an SBAguaranteed Bid Bond are Executed by a 

Preferred Surety or by a Prior Approval 

Surety following SBA’s approval of its 

request for a guarantee of Final Bonds. 

(2) Aggregation of Contract and Order 

amounts. (i) The amounts of two or 

more formally separate Contracts for a 

single construction project are 

aggregated to determine the Contract 

amount unless the Contracts are to be 

performed in phases and the prior bond 

is released before the beginning of each 

succeeding phase. A bond may be 

considered released even if the warranty 

period it is covering has not yet expired. 

For purposes of this paragraph, a ‘‘single 

construction project’’ means one 

represented by two or more Contracts of 

one Principal or its Affiliates with one 

Obligee or its Affiliates for performance 

at the same location, regardless of job 

title or nature of the work to be 

performed. 

(ii) The amounts of two or more 

Contracts or Orders for supplies and 

services awarded to the same Principal 

or its Affiliates are aggregated to 

determine the Contract or Order amount 

if SBA determines, after discussion with 

the contracting official responsible for 

the award of the contract, that award of 

a single Contract or Order could 

reasonably have satisfied the supply or 

service requirement at the time of 

issuance. 

(3) Contracts or Orders in excess of 

$2,000,000. SBA is not authorized to 

guarantee bonds on Contracts or Orders 

in excess of $2,000,000 if the statement 

of work involves, directly or indirectly, 

construction, operation, renovation or 

improvement of a casino or other 

gambling establishment, aquarium, zoo, 

golf course or swimming pool, or the 

Contract Obligee has one of the 

following NAICS codes: 

(i) 713210—‘‘Casinos (Except Casino 

Hotels)’’; 

(ii) 721120—‘‘Casino Hotels’’; 

(iii) 713290—‘‘Other Gambling 

Industries’’; 

(iv) 713910—‘‘Golf Courses and 

Country Clubs’’; 

(v) 712130—‘‘Zoos and Botanical 

Gardens’’; or 

(vi) 713940—‘‘Fitness and 

Recreational Sports Centers’’ if SBA 

determines the business is a swimming 

pool. 

(4) Federal Contracts or Orders in 

excess of $5,000,000. Through 

September 30, 2010, SBA is authorized 

to guarantee bonds on Federal Contracts 

or Orders greater than $5,000,000, and 

up to $10,000,000, upon a signed 

certification of a Federal contracting 

officer. The contracting officer’s 

certification must include a statement 

that the small business is experiencing 

difficulty obtaining a bond and that an 

SBA bond guarantee would be in the 

best interests of the Government. The 

certification must be express mailed to 

SBA, Office of Surety Guarantees, 409 

Third Street, SW., Suite 8600, 

Washington, DC 20416, or faxed to the 

Office of Surety Guarantees at 202–481– 

0390, with a copy provided to the small 

business, and must include the 

following additional information: 

(i) Name, address and telephone 

number of the small business; 

(ii) Offer or Contract number and brief 

description of the contract; and 

(iii) Estimated Contract value and date 

of anticipated award determination. 

* * * * * 

■ 4. Amend § 115.19 by revising the 

introductory text and paragraph (a) to 

read as follows: 

§ 115.19 Denial of liability. 

Except for bonds executed on or after 

February 17, 2009 and before October 1, 

2010, in addition to equitable and legal 

defenses and remedies under contract 

law, the Act, and the regulations in this 

part, SBA is relieved of liability if any 

of the circumstances in paragraphs (a) 

through (h) of this section exist. For 

bonds executed on or after February 17, 

2009 and before October 1, 2010, SBA 

is relieved of liability in whole or in 

part within its discretion under those 

circumstances, except that SBA shall 

not deny liability on Prior Approval 

bonds executed during such timeframe 

based solely upon material information 

that was provided as part of the 

guarantee application. 

(a) Excess Contract or bond amount. 

The total Contract or Order amount at 

the time of Execution of the bond 

exceeds the Applicable Statutory Limit 

(see § 115.10) or the bond amount at any 

time exceeds the total Contract or Order 

amount. 

* * * * * 

■ 5. Amend § 115.31 by revising the 

heading and first sentence of paragraph 

(d), and revising paragraph (e), to read 

as follows: 

§ 115.31 Guarantee percentage. 

* * * * * 

(d) Contract or Order increases exceed 

Applicable Statutory Limit. If the 

Contract or Order amount is increased 

above the Applicable Statutory Limit 

after Execution of the bond, SBA’s share 

of the Loss is limited to that percentage 

of the increased Contract or Order 

amount that the Applicable Statutory 

Limit represents multiplied by the 

guarantee percentage approved by SBA. 

* * * 

(e) Contract or Order decrease to 

$100,000 or less. If the Contract or Order 

amount decreases to $100,000, or less, 

after Execution of the bond, SBA’s 

guarantee percentage increases to 90% if 

the Surety provides SBA with evidence 

supporting the decrease and any other 

information or documents requested. 

■ 6. Section 115.68 is revised to read as 

follows: 

§ 115.68 Guarantee percentage. 

SBA reimburses a PSB Surety in an 

amount not to exceed 70% of the Loss 

incurred and paid. Where the total 

Contract or Order amount increases 

beyond the Applicable Statutory Limit 

after Execution of the bond, SBA’s share 

of the Loss is limited to that percentage 

of the increased Contract or Order 

amount which the statutory limit 

represents, multiplied by the guarantee 

percentage approved by SBA. For an 

example, see § 115.31(d). 

PART 121—SMALL BUSINESS SIZE 

REGULATIONS 

■ 1. The authority citation for 13 CFR 

Part 121 is revised to read as follows: 

Authority: 15 U.S.C. 632, 634(b)(6), 636(b), 

637(a), 644, 662(5) and 694a; and Pub. L. 

105–135, sec. 401 et seq., 111 Stat. 2592. 

■ 2. Amend § 121.301 by adding a new 

paragraph (d)(4) to read as follows: 

§ 121.301 What size standards are 

applicable to financial assistance 

programs? 

* * * * * 

(4) Notwithstanding paragraphs (d) 

(1), (2) and (3) of this section, from 

February 17, 2009 through September 

30, 2010, a concern is small only if it is 

a business concern that, combined with 

its affiliates, does not exceed the size 

standard designated for the primary 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Rules and Regulations 36111 

industry of the business concern 

combined with its affiliates. 

* * * * * 

Dated: July 16, 2009. 

Karen Gordon Mills, 

Administrator. 

[FR Doc. E9–17323 Filed 7–17–09; 11:15 am] 

BILLING CODE 8025–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Parts 520 and 522 

[Docket No. FDA–2009–N–0270] 

Animal Drugs, Feeds, and Related 

Products; Withdrawal of Approval of 

New Animal Drug Applications 

AGENCY: Food and Drug Administration, 

HHS. 

ACTION: Final rule. 

SUMMARY: The Food and Drug 

Administration (FDA) is amending the 

animal drug regulations by removing 

those portions that reflect approval of 

two new animal drug applications 

(NADAs) and an abbreviated new 

animal drug application (ANADA). In a 

notice published elsewhere in this issue 

of the Federal Register, FDA is 

withdrawing approval of these NADAs 

and ANADA. 

DATES: This rule is effective August 3, 

2009. 

FOR FURTHER INFORMATION CONTACT: John 

Bartkowiak, Center for Veterinary 

Medicine (HFV–212), Food and Drug 

Administration, 7519 Standish Pl., 

Rockville, MD 20855, 240–276–9079, email: john.bartkowiak@fda.hhs.gov. 

SUPPLEMENTARY INFORMATION: The 

following sponsors have requested that 

FDA withdraw approval of the two 

NADAs and ANADA listed in table 1 of 

this document because the products are 

no longer manufactured or marketed: 

TABLE 1. 

Sponsor NADA/ANADA Number 

Product (Drug) 

21 CFR Cite Affected 

(Sponsor Drug Labeler Code) 

Wellmark International, 1501 East Woodfield 

Rd., suite 200, West Schaumburg, IL 60173 

NADA 141–162 

Zodiac Fleatrol Flea Caps (S-methoprene) 

520.1390 (011536) 

IDEXX Pharmaceuticals, Inc., 7009 Albert 

Pick Rd., Greensboro, NC 27409 

NADA 141–178 

NAVIGATOR Paste (nitazoxanide) 

520.1498 (065274) 

Abbott Laboratories, North Chicago, IL 60064 ANADA 200–279 

KETAFLO Injection (ketamine HCl, USP) 

522.1222a (000074) 

In a notice published elsewhere in 

this issue of the Federal Register, FDA 

gave notice that approval of NADAs 

141–162 and 141–178, and ANADA 

200–279, and all supplements and 

amendments thereto, are withdrawn, 

effective August 3, 2009. As provided in 

the regulatory text of this document, the 

animal drug regulations are amended to 

reflect the withdrawal of approval. 

This rule does not meet the definition 

of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because 

it is a rule of ‘‘particular applicability.’’ 

Therefore, it is not subject to the 

congressional review requirements in 5 

U.S.C. 801–808. 

List of Subjects in 21 CFR Parts 520 and 

522 

Animal drugs. 

■ Therefore, under the Federal Food, 

Drug, and Cosmetic Act and under 

authority delegated to the Commissioner 

of Food and Drugs and redelegated to 

the Center for Veterinary Medicine, 21 

CFR parts 520 and 522 are amended as 

follows: 

PART 520—ORAL DOSAGE FORM 

NEW ANIMAL DRUGS 

■ 1. The authority citation for 21 CFR 

part 520 continues to read as follows: 

Authority: 21 U.S.C. 360b. 

§ 520.1390 [Removed] 

■ 2. Remove § 520.1390. 

§ 520.1498 [Removed] 

■ 3. Remove § 520.1498. 

PART 522—IMPLANTATION OR 

INJECTABLE DOSAGE FORM NEW 

ANIMAL DRUGS 

■ 4. The authority citation for 21 CFR 

part 522 continues to read as follows: 

Authority: 21 U.S.C. 360b. 

§ 522.1222a [Amended] 

■ 5. In paragraph (b) of § 522.1222a, 

remove ‘‘000074,’’. 

Dated: July 14, 2009. 

Bernadette Dunham, 

Director, Center for Veterinary Medicine. 

[FR Doc. E9–17409 Filed 7–21–09; 8:45 am] 

BILLING CODE 4160–01–S 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Parts 520 and 524 

[Docket No. FDA–2009–N–0665] 

New Animal Drugs; Change of Sponsor 

AGENCY: Food and Drug Administration, 

HHS. 

ACTION: Final rule. 

SUMMARY: The Food and Drug 

Administration (FDA) is amending the 

animal drug regulations to reflect a 

change of sponsor for three new animal 

drug applications (NADAs) and one 

abbreviated new animal drug 

application (ANADA) from Virbac AH, 

Inc., to Cross Vetpharm Group Ltd. 

DATES: This rule is effective July 22, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

David R. Newkirk, Center for Veterinary 

Medicine (HFV–100), Food and Drug 

Administration, 7500 Standish Pl., 

Rockville, MD 20855, 240–276–8307, email: david.newkirk@fda.hhs.gov. 

SUPPLEMENTARY INFORMATION: Virbac 

AH, Inc., 3200 Meacham Blvd., Ft. 


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