Surety Bond Guarantee Program; Disaster and Miscellaneous Amendments, 21521-21523 [2010-9434]
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21521
Proposed Rules
Federal Register
Vol. 75, No. 79
Monday, April 26, 2010
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
final determination whether it will
publish the information.
FOR FURTHER INFORMATION CONTACT: Ms.
Barbara J. Brannan, Office of Surety
Guarantees, 202–205–6545, e-mail:
barbara.brannan@sba.gov.
SUPPLEMENTARY INFORMATION:
SMALL BUSINESS ADMINISTRATION
I. Background Information
SBA guarantees a portion of bid,
payment and performance bonds on
contracts up to $2 million for small and
emerging contractors who cannot obtain
Surety bonds through regular
commercial channels. SBA’s guarantee
gives Sureties an incentive to provide
bonding for small businesses and
thereby assists small businesses in
obtaining greater access to contracting
opportunities. The Proposed Rule
includes four proposed revisions to 13
CFR 115. Three of the four revisions
would implement the authority granted
to the Agency in § 12079 of subtitle B
of title XII of Public Law 110–246. The
fourth revision would clarify that SBA
does not cover any costs related to any
insurance or indemnification
requirements in the bonded contract.
Section 12079 of Public Law 110–246
sets forth the bonding thresholds for any
procurement related to a major disaster.
For Contracts and Orders, as defined in
13 CFR 115.10, related to a major
disaster, a new provision would be
added to SBA regulations, 13 CFR
115.12(e)(5), to authorize SBA to
approve, under certain conditions, an
SBA bond guarantee on an individual
Contract or Order up to $5,000,000 at
the time of bond execution. For
products or services procured under
non-Federal Contracts or Orders up to
$5,000,000, an SBA bond guarantee may
be issued if the products will be
manufactured or the services will be
performed in the major disaster area
identified in the Federal Emergency
Management Agency (FEMA) Web site.
SBA finds that the manufacturing of any
products or the performance of any
services in the disaster area will assist
recovery efforts in the disaster area by
generating economic activity and that,
therefore, these procurements are
reasonably related to the major disaster.
For products or services procured
under a Federal Contract or Order up to
$5,000,000, an SBA bond guarantee
may be issued if: (a) The products will
be manufactured or the services will be
performed in the major disaster area
13 CFR Part 115
RIN 3245–AF77
Surety Bond Guarantee Program;
Disaster and Miscellaneous
Amendments
Small Business Administration.
Proposed rule.
AGENCY:
WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS
ACTION:
SUMMARY: This Proposed Rule would
implement the authority provided by
the Small Business Disaster Response
and Loan Improvements Act of 2008 for
issuing surety bond guarantees for
contracts and orders related to a major
disaster. The Proposed Rule would also
clarify that the Small Business
Administration (SBA) does not cover
any costs related to any insurance or
indemnification requirements in the
bonded contract.
DATES: Comments must be received on
or before May 26, 2010.
ADDRESSES: You may submit comments,
identified by RIN 3245–AF77 by any of
the following methods:
• Federal eRulemaking Portal: https://
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
www.regulations.gov. If you wish to
submit confidential business
information (CBI) as defined in the User
Notice at www.regulations.gov, please
submit the information to Ms. Barbara
Brannan, Special Assistant, Office of
Surety Guarantees, 409 Third Street,
SW., Washington, DC 20416 or send an
e-mail to barbara.brannan@sba.gov.
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
VerDate Nov<24>2008
15:22 Apr 23, 2010
Jkt 220001
PO 00000
Frm 00001
Fmt 4702
Sfmt 4702
identified in the FEMA Web site; or (b)
the products will be manufactured or
the services will be performed outside
the major disaster area and the products
or services will directly assist in the
recovery efforts in the major disaster
area. The SBA bond guarantee may be
issued on a Federal Contract or Order
that meets one of the above two
conditions up to $10,000,000 at the
request of the Head of the Agency
involved in disaster reconstruction
efforts.
In addition, SBA believes that
recovery efforts after a major disaster
will generally continue for the first 12
months after the disaster is declared.
Accordingly, the Proposed Rule
provides that SBA’s authority to
guarantee bonds in the amounts
authorized by Public Law 110–246 for a
particular disaster would apply only
during the 12 months following the
disaster declaration unless SBA extends,
in its discretion, the authority for such
disaster. SBA will publish a notice of
any extension in the Federal Register.
This new bond authority is also
subject to the availability of funds
appropriated in advance specifically to
carry out § 12079 of Public Law 110–
246. In accordance with the new
authority, the definition of Applicable
Statutory Limit set forth in 13 CFR
115.10 would be revised, and a new
definition for Head of Agency would be
added to 13 CFR 115.10.
In addition, the Proposed Rule would
clarify that SBA does not cover any
costs related to any insurance or
indemnification requirements in the
bonded contract. As insurance and
indemnification requirements may
appear in Contracts, SBA is proposing to
add a new paragraph (5) to § 115.16(f) to
clarify that SBA excludes the following
from the losses covered by the SBA
guarantee: (1) Any costs that arise from
the Principal’s failure to secure and
maintain insurance coverage required
by the Contract or Order; (2) any costs
that result from any claims or judgments
that exceed the amount of any insurance
coverage required by the Contract or
Order; and (3) any costs that arise from
any agreement by the Principal in the
Contract or Order to indemnify the
Obligee or any other Persons.
II. Section by Section Analysis
Section 115.10. SBA is proposing to
revise the definition of the term,
‘‘Applicable Statutory Limit’’ to reflect
E:\FR\FM\26APP1.SGM
26APP1
WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS
21522
Federal Register / Vol. 75, No. 79 / Monday, April 26, 2010 / Proposed Rules
that the maximum amount of any
Contract or Order for which the Agency
may issue a surety bond guarantee may
be set by statutory provisions other than
§ 411(a) of the Small Business
Investment Act, such as by § 12079 of
Public Law 110–246. SBA is also
proposing to add a new definition for
‘‘Head of Agency’’ to implement
§ 12079(b) of Public Law 110–246.
Section 115.12(e)(5). SBA is
proposing to add a new provision
relating to the new surety bond
guarantee authority provided under
§ 12079 of Public Law 110–246 for
Contracts and Orders related to a major
disaster area. This new authority would
apply to an individual Contract or Order
up to $5,000,000 at the time of bond
execution. For products or services
procured under non-Federal Contracts
or Orders up to $5,000,000, an SBA
bond guarantee may be issued if the
products will be manufactured or the
services will be performed in the major
disaster area identified in the FEMA
Web site. For products or services
procured under a Federal Contract or
Order up to $5,000,000, an SBA bond
guarantee may be issued if: (a) The
products will be manufactured or the
services will be performed in the major
disaster area identified in the FEMA
Web site; or (b) the products are
manufactured or the services are
performed outside the major disaster
area and the products or services will
directly assist in the recovery efforts in
the major disaster area. The SBA bond
guarantee may be issued on a Federal
Contract or Order that meets one of the
above two conditions up to $10,000,000
at the request of the Head of the Agency
involved in disaster reconstruction
efforts.
In addition, this provision would
apply to a Contract or Order for which
an offer is submitted or award made
within 12 months from the date an area
is designated a major disaster area as
identified in the FEMA Web site at
https://www.fema.gov. SBA may, at its
discretion, extend this time period for
any particular disaster. SBA expects that
it would consider extending the time
period only where efforts to recover
from the major disaster were still
underway one year after its occurrence.
SBA will publish a notice of any
extension in the Federal Register. The
new bond authority is also expressly
conditioned on the appropriation of
funds in advance.
Section 115.16(f). SBA is proposing to
add a new paragraph (5) to clarify that
SBA does not cover any costs related to
any insurance or indemnification
requirements in the bonded contract. As
insurance and indemnification
VerDate Nov<24>2008
15:22 Apr 23, 2010
Jkt 220001
requirements may appear in Contracts,
SBA is proposing to clarify that the
following costs are excluded from the
losses covered by the SBA guarantee: (1)
Any costs that arise from the Principal’s
failure to secure and maintain insurance
coverage required by the Contract or
Order; (2) any costs that result from any
claims or judgments that exceed the
amount of any insurance coverage
required by the Contract or Order; and
(3) any costs that arise from any
agreement in the Contract or Order by
the Principal to indemnify the Obligee
or any other Persons.
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
does not constitute a significant
regulatory action under Executive Order
12866. This rule is also not a major rule
under the Congressional Review Act.
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. The action does not have
retroactive or preemptive effect.
Executive Order 13132
For purposes of Executive Order
13132, SBA has determined that the rule
will not have substantial, direct effects
on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government. Therefore,
for the purpose of Executive Order
13132, Federalism, SBA has determined
that this Proposed Rule has no
federalism implications warranting
preparation of a federalism assessment.
Paperwork Reduction Act, 44 U.S.C.,
Ch. 35
SBA has determined that this
Proposed Rule does not impose
additional reporting or recordkeeping
requirements under the Paperwork
Reduction Act, 44 U.S.C., Chapter 35.
Regulatory Flexibility Act, 5 U.S.C.
601–612
The Regulatory Flexibility Act (RFA),
5 U.S.C. 601, requires administrative
agencies to consider the effect of their
actions on small entities, small nonprofit enterprises, and small local
governments. Pursuant to the RFA,
PO 00000
Frm 00002
Fmt 4702
Sfmt 4702
when an agency issues a rulemaking,
the agency must prepare a regulatory
flexibility analysis which describes the
impact of the rule on small entities.
However, section 605 of the RFA allows
an agency to certify a rule, in lieu of
preparing an analysis, if the rulemaking
is not expected to have a significant
economic impact on a substantial
number of small entities. Within the
meaning of RFA, SBA certifies that this
rule will not have a significant
economic impact on a substantial
number of small entities. There are
approximately one dozen Sureties that
participate in the SBA program, and no
part of this Proposed Rule would
impose any significant additional cost
or burden on them.
List of Subjects in 13 CFR Part 115
Claims, Reporting and recordkeeping
requirements, Small businesses, Surety
bonds.
For the reasons stated in the
preamble, the Small Business
Administration proposes to amend 13
CFR Part 115 as follows:
PART 115—SURETY BOND
GUARANTEE
1. The authority citation for part 115
is revised to read as follows:
Authority: 5 U.S.C. app. 3; 15 U.S.C. 687b,
687c, 694a, 694b note, Pub. L. 106–554; Pub.
L. 108–447, Div K, § 203; Pub. L. 110–246,
§ 12079, 122 Stat. 1651; and Pub. L. 111–5,
123 Stat.115.
2. In § 115.10, revise the definition of
‘‘Applicable Statutory Limit’’ and add
the definition of ‘‘Head of Agency’’ to
read as follows:
§ 115.10
Definitions.
*
*
*
*
*
Applicable Statutory Limit means the
maximum amount of any Contract or
Order for which § 411(a) of the Small
Business Investment Act, as amended
from time to time, or other law,
authorizes SBA to guarantee, or commit
to guarantee, a Bid Bond, Payment
Bond, Performance Bond, or Ancillary
Bond.
*
*
*
*
*
Head of Agency means in the case of
a cabinet department, the Secretary; and
in the case of an independent
commission, board, or agency, the Chair
or Administrator; or any person to
whom the Secretary, Chair, or
Administrator has directly delegated the
authority to request SBA to guarantee
bonds on Contracts or Orders in excess
of $5,000,000.
*
*
*
*
*
3. In § 115.12, add paragraph (e)(5) to
read as follows:
E:\FR\FM\26APP1.SGM
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Federal Register / Vol. 75, No. 79 / Monday, April 26, 2010 / Proposed Rules
§ 115.12 General program policies and
provisions.
WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS
*
*
*
*
*
(e) * * *
(5) Guarantee authority for Contracts
and Orders related to a major disaster
area. Subject to the availability of funds
appropriated in advance specifically for
the purpose of guaranteeing bonds for
any Contract or Order related to a major
disaster, SBA may guarantee bonds on
any Contract or Order under the
following terms and conditions:
(i) The Contract or Order does not
exceed $5,000,000 at the time of bond
execution, and:
(A) For products or services procured
under a Federal Contract or Order, the
products will be manufactured or the
services will be performed in the major
disaster area identified in the Federal
Emergency Management Agency
(FEMA) Web site at https://
www.fema.gov, or the products will be
manufactured or the services will be
performed outside the major disaster
area and the products or services will
directly assist in the recovery efforts in
the major disaster area; or
(B) For products or services procured
under any other Contract or Order, the
products will be manufactured or the
services will be performed in the major
disaster area identified in the FEMA
Web site at https://www.fema.gov;
(ii) At the request of the Head of the
Agency involved in reconstruction
efforts in response to a major disaster,
SBA may guarantee bonds on Federal
Contracts or Orders in excess of
$5,000,000, but not more than
$10,000,000;
(iii) The restrictions set forth in
§ 115.12(e)(3) do not apply to the
guarantees issued under this paragraph
(e)(5); and
(iv) A guarantee may be issued under
this paragraph (e)(5) for any Contract or
Order for which an offer is submitted or
an award is made within 12 months
from the date an area is designated a
major disaster area in the Federal
Register. SBA may, at its discretion,
extend this time period for any
particular disaster, and will publish a
notice of the extension in the Federal
Register.
*
*
*
*
*
4. Amend § 115.16 as follows:
a. Remove the word ‘‘and’’ at the end
of paragraph (f)(3);
b. Remove the punctuation ‘‘.’’ at the
end of paragraph (f)(4); and
c. Add paragraph (f)(5) to read as
follows:
§ 115.16
*
Determination of Surety’s Loss.
*
*
(f) * * *
VerDate Nov<24>2008
*
*
15:22 Apr 23, 2010
Jkt 220001
(5) Any costs that arise from the
Principal’s failure to secure and
maintain insurance coverage required
by the Contract or Order, or any costs
that result from any claims or judgments
that exceed the amount of any insurance
coverage required by the Contract or
Order, as well as any costs that arise as
a result of any agreement by the
Principal in the Contract or Order to
indemnify the Obligee or any other
Persons.
Karen G. Mills,
Administrator.
[FR Doc. 2010–9434 Filed 4–23–10; 8:45 am]
BILLING CODE 8025–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 33
[Docket No. FAA–2010–0398; Notice No. 10–
06]
RIN 2120–AJ62
Airworthiness Standards; Rotor
Overspeed Requirements
AGENCY: Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
SUMMARY: The FAA proposes to amend
the aircraft turbine engine rotor
overspeed type certification standards.
This action would establish uniform
rotor overspeed design and test
requirements for aircraft engines and
turbochargers certificated by the FAA
and the European Aviation Safety
Agency (EASA). The proposed rule
would also establish uniform standards
for the design and testing of engine rotor
parts in the United States and in
Europe, eliminating the need to comply
with two differing sets of requirements.
The proposed rule would improve
safety by clarifying existing overspeed
requirements for aircraft turbine engine
rotor parts.
DATES: Send your comments on or
before July 26, 2010.
ADDRESSES: You may send comments
identified by docket number FAA–
2010–0398 using any of the following
methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov and follow
the online instructions for sending your
comments electronically.
• Mail: Send Comments to Docket
Operations, M–30; U.S. Department of
Transportation, 1200 New Jersey
Avenue, SE., West Building Ground
PO 00000
Frm 00003
Fmt 4702
Sfmt 4702
21523
Floor, Room W12–140, Washington, DC
20590–0001.
• Hand Delivery: Take comments to
Docket Operations in Room W12–140 of
the West Building Ground Floor at 1200
New Jersey Avenue, SE., Washington,
DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
• Fax: 1–202–493–2251.
For more information on the rulemaking
process, see the SUPPLEMENTARY
INFORMATION section of this document.
Privacy: We will post all comments
we receive, without change, to https://
www.regulations.gov, including any
personal information you provide.
Using the search function of our docket
Web site, anyone can find and read the
comments received into any of our
dockets, including the name of the
individual sending the comment (or
signing the comment for an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (65 FR
19477–78) or you may visit https://
DocketsInfo.dot.gov.
Docket: To read background
documents or comments received, go to
https://www.regulations.gov at any time
and follow the online instructions for
accessing the docket or go to Docket
Operations in Room W12–140 of the
West Building Ground Floor at 1200
New Jersey Avenue, SE., Washington,
DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: For
technical questions concerning this
proposed rule, contact Tim Mouzakis,
Engine and Propeller Directorate
Standards Staff, ANE–111, Engine and
Propeller Directorate, Federal Aviation
Administration, 12 New England
Executive Park, Burlington,
Massachusetts 01803–5299; telephone
(781) 238–7114; fax (781) 238–7199;
e-mail timoleon.mouzakis@.faa.gov. For
legal questions concerning this
proposed rule contact Vincent Bennett,
ANE–7, Office of Regional Counsel,
Federal Aviation Administration, 12
New England Executive Park,
Burlington, Massachusetts 01803–5299;
telephone (781) 238–7044; fax (781)
238–7055; e-mail
vincent.bennett@faa.gov.
SUPPLEMENTARY INFORMATION: Later in
this preamble under the Additional
Information section, we discuss how
you can comment on this proposal and
how we will handle your comments.
Included in this discussion is related
information about the docket, privacy,
and the handling of proprietary or
confidential business information. We
also discuss how you can get a copy of
E:\FR\FM\26APP1.SGM
26APP1
Agencies
[Federal Register Volume 75, Number 79 (Monday, April 26, 2010)]
[Proposed Rules]
[Pages 21521-21523]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-9434]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 75, No. 79 / Monday, April 26, 2010 /
Proposed Rules
[[Page 21521]]
SMALL BUSINESS ADMINISTRATION
13 CFR Part 115
RIN 3245-AF77
Surety Bond Guarantee Program; Disaster and Miscellaneous
Amendments
AGENCY: Small Business Administration.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This Proposed Rule would implement the authority provided by
the Small Business Disaster Response and Loan Improvements Act of 2008
for issuing surety bond guarantees for contracts and orders related to
a major disaster. The Proposed Rule would also clarify that the Small
Business Administration (SBA) does not cover any costs related to any
insurance or indemnification requirements in the bonded contract.
DATES: Comments must be received on or before May 26, 2010.
ADDRESSES: You may submit comments, identified by RIN 3245-AF77 by any
of the following methods:
Federal eRulemaking Portal: https://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 www.regulations.gov. If you wish to
submit confidential business information (CBI) as defined in the User
Notice at www.regulations.gov, please submit the information to Ms.
Barbara Brannan, Special Assistant, Office of Surety Guarantees, 409
Third Street, SW., Washington, DC 20416 or send an e-mail to
barbara.brannan@sba.gov. 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: Ms. Barbara J. Brannan, Office of
Surety Guarantees, 202-205-6545, e-mail: barbara.brannan@sba.gov.
SUPPLEMENTARY INFORMATION:
I. Background Information
SBA guarantees a portion of bid, payment and performance bonds on
contracts up to $2 million for small and emerging contractors who
cannot obtain Surety bonds through regular commercial channels. SBA's
guarantee gives Sureties an incentive to provide bonding for small
businesses and thereby assists small businesses in obtaining greater
access to contracting opportunities. The Proposed Rule includes four
proposed revisions to 13 CFR 115. Three of the four revisions would
implement the authority granted to the Agency in Sec. 12079 of
subtitle B of title XII of Public Law 110-246. The fourth revision
would clarify that SBA does not cover any costs related to any
insurance or indemnification requirements in the bonded contract.
Section 12079 of Public Law 110-246 sets forth the bonding
thresholds for any procurement related to a major disaster. For
Contracts and Orders, as defined in 13 CFR 115.10, related to a major
disaster, a new provision would be added to SBA regulations, 13 CFR
115.12(e)(5), to authorize SBA to approve, under certain conditions, an
SBA bond guarantee on an individual Contract or Order up to $5,000,000
at the time of bond execution. For products or services procured under
non-Federal Contracts or Orders up to $5,000,000, an SBA bond guarantee
may be issued if the products will be manufactured or the services will
be performed in the major disaster area identified in the Federal
Emergency Management Agency (FEMA) Web site. SBA finds that the
manufacturing of any products or the performance of any services in the
disaster area will assist recovery efforts in the disaster area by
generating economic activity and that, therefore, these procurements
are reasonably related to the major disaster.
For products or services procured under a Federal Contract or Order
up to $5,000,000, an SBA bond guarantee may be issued if: (a) The
products will be manufactured or the services will be performed in the
major disaster area identified in the FEMA Web site; or (b) the
products will be manufactured or the services will be performed outside
the major disaster area and the products or services will directly
assist in the recovery efforts in the major disaster area. The SBA bond
guarantee may be issued on a Federal Contract or Order that meets one
of the above two conditions up to $10,000,000 at the request of the
Head of the Agency involved in disaster reconstruction efforts.
In addition, SBA believes that recovery efforts after a major
disaster will generally continue for the first 12 months after the
disaster is declared. Accordingly, the Proposed Rule provides that
SBA's authority to guarantee bonds in the amounts authorized by Public
Law 110-246 for a particular disaster would apply only during the 12
months following the disaster declaration unless SBA extends, in its
discretion, the authority for such disaster. SBA will publish a notice
of any extension in the Federal Register.
This new bond authority is also subject to the availability of
funds appropriated in advance specifically to carry out Sec. 12079 of
Public Law 110-246. In accordance with the new authority, the
definition of Applicable Statutory Limit set forth in 13 CFR 115.10
would be revised, and a new definition for Head of Agency would be
added to 13 CFR 115.10.
In addition, the Proposed Rule would clarify that SBA does not
cover any costs related to any insurance or indemnification
requirements in the bonded contract. As insurance and indemnification
requirements may appear in Contracts, SBA is proposing to add a new
paragraph (5) to Sec. 115.16(f) to clarify that SBA excludes the
following from the losses covered by the SBA guarantee: (1) Any costs
that arise from the Principal's failure to secure and maintain
insurance coverage required by the Contract or Order; (2) any costs
that result from any claims or judgments that exceed the amount of any
insurance coverage required by the Contract or Order; and (3) any costs
that arise from any agreement by the Principal in the Contract or Order
to indemnify the Obligee or any other Persons.
II. Section by Section Analysis
Section 115.10. SBA is proposing to revise the definition of the
term, ``Applicable Statutory Limit'' to reflect
[[Page 21522]]
that the maximum amount of any Contract or Order for which the Agency
may issue a surety bond guarantee may be set by statutory provisions
other than Sec. 411(a) of the Small Business Investment Act, such as
by Sec. 12079 of Public Law 110-246. SBA is also proposing to add a
new definition for ``Head of Agency'' to implement Sec. 12079(b) of
Public Law 110-246.
Section 115.12(e)(5). SBA is proposing to add a new provision
relating to the new surety bond guarantee authority provided under
Sec. 12079 of Public Law 110-246 for Contracts and Orders related to a
major disaster area. This new authority would apply to an individual
Contract or Order up to $5,000,000 at the time of bond execution. For
products or services procured under non-Federal Contracts or Orders up
to $5,000,000, an SBA bond guarantee may be issued if the products will
be manufactured or the services will be performed in the major disaster
area identified in the FEMA Web site. For products or services procured
under a Federal Contract or Order up to $5,000,000, an SBA bond
guarantee may be issued if: (a) The products will be manufactured or
the services will be performed in the major disaster area identified in
the FEMA Web site; or (b) the products are manufactured or the services
are performed outside the major disaster area and the products or
services will directly assist in the recovery efforts in the major
disaster area. The SBA bond guarantee may be issued on a Federal
Contract or Order that meets one of the above two conditions up to
$10,000,000 at the request of the Head of the Agency involved in
disaster reconstruction efforts.
In addition, this provision would apply to a Contract or Order for
which an offer is submitted or award made within 12 months from the
date an area is designated a major disaster area as identified in the
FEMA Web site at https://www.fema.gov. SBA may, at its discretion,
extend this time period for any particular disaster. SBA expects that
it would consider extending the time period only where efforts to
recover from the major disaster were still underway one year after its
occurrence. SBA will publish a notice of any extension in the Federal
Register. The new bond authority is also expressly conditioned on the
appropriation of funds in advance.
Section 115.16(f). SBA is proposing to add a new paragraph (5) to
clarify that SBA does not cover any costs related to any insurance or
indemnification requirements in the bonded contract. As insurance and
indemnification requirements may appear in Contracts, SBA is proposing
to clarify that the following costs are excluded from the losses
covered by the SBA guarantee: (1) Any costs that arise from the
Principal's failure to secure and maintain insurance coverage required
by the Contract or Order; (2) any costs that result from any claims or
judgments that exceed the amount of any insurance coverage required by
the Contract or Order; and (3) any costs that arise from any agreement
in the Contract or Order by the Principal to indemnify the Obligee or
any other Persons.
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 does not constitute a significant regulatory action under
Executive Order 12866. This rule is also not a major rule under the
Congressional Review Act.
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. The action does not
have retroactive or preemptive effect.
Executive Order 13132
For purposes of Executive Order 13132, SBA has determined that the
rule will not have substantial, direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, for the purpose of Executive Order 13132,
Federalism, SBA has determined that this Proposed Rule has no
federalism implications warranting preparation of a federalism
assessment.
Paperwork Reduction Act, 44 U.S.C., Ch. 35
SBA has determined that this Proposed Rule does not impose
additional reporting or recordkeeping requirements under the Paperwork
Reduction Act, 44 U.S.C., Chapter 35.
Regulatory Flexibility Act, 5 U.S.C. 601-612
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, requires
administrative agencies to consider the effect of their actions on
small entities, small non-profit enterprises, and small local
governments. Pursuant to the RFA, when an agency issues a rulemaking,
the agency must prepare a regulatory flexibility analysis which
describes the impact of the rule on small entities. However, section
605 of the RFA allows an agency to certify a rule, in lieu of preparing
an analysis, if the rulemaking is not expected to have a significant
economic impact on a substantial number of small entities. Within the
meaning of RFA, SBA certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
There are approximately one dozen Sureties that participate in the SBA
program, and no part of this Proposed Rule would impose any significant
additional cost or burden on them.
List of Subjects in 13 CFR Part 115
Claims, Reporting and recordkeeping requirements, Small businesses,
Surety bonds.
For the reasons stated in the preamble, the Small Business
Administration proposes to amend 13 CFR Part 115 as follows:
PART 115--SURETY BOND GUARANTEE
1. The authority citation for part 115 is revised to read as
follows:
Authority: 5 U.S.C. app. 3; 15 U.S.C. 687b, 687c, 694a, 694b
note, Pub. L. 106-554; Pub. L. 108-447, Div K, Sec. 203; Pub. L.
110-246, Sec. 12079, 122 Stat. 1651; and Pub. L. 111-5, 123
Stat.115.
2. In Sec. 115.10, revise the definition of ``Applicable Statutory
Limit'' and add the definition of ``Head of Agency'' to read as
follows:
Sec. 115.10 Definitions.
* * * * *
Applicable Statutory Limit means the maximum amount of any Contract
or Order for which Sec. 411(a) of the Small Business Investment Act,
as amended from time to time, or other law, authorizes SBA to
guarantee, or commit to guarantee, a Bid Bond, Payment Bond,
Performance Bond, or Ancillary Bond.
* * * * *
Head of Agency means in the case of a cabinet department, the
Secretary; and in the case of an independent commission, board, or
agency, the Chair or Administrator; or any person to whom the
Secretary, Chair, or Administrator has directly delegated the authority
to request SBA to guarantee bonds on Contracts or Orders in excess of
$5,000,000.
* * * * *
3. In Sec. 115.12, add paragraph (e)(5) to read as follows:
[[Page 21523]]
Sec. 115.12 General program policies and provisions.
* * * * *
(e) * * *
(5) Guarantee authority for Contracts and Orders related to a major
disaster area. Subject to the availability of funds appropriated in
advance specifically for the purpose of guaranteeing bonds for any
Contract or Order related to a major disaster, SBA may guarantee bonds
on any Contract or Order under the following terms and conditions:
(i) The Contract or Order does not exceed $5,000,000 at the time of
bond execution, and:
(A) For products or services procured under a Federal Contract or
Order, the products will be manufactured or the services will be
performed in the major disaster area identified in the Federal
Emergency Management Agency (FEMA) Web site at https://www.fema.gov, or
the products will be manufactured or the services will be performed
outside the major disaster area and the products or services will
directly assist in the recovery efforts in the major disaster area; or
(B) For products or services procured under any other Contract or
Order, the products will be manufactured or the services will be
performed in the major disaster area identified in the FEMA Web site at
https://www.fema.gov;
(ii) At the request of the Head of the Agency involved in
reconstruction efforts in response to a major disaster, SBA may
guarantee bonds on Federal Contracts or Orders in excess of $5,000,000,
but not more than $10,000,000;
(iii) The restrictions set forth in Sec. 115.12(e)(3) do not apply
to the guarantees issued under this paragraph (e)(5); and
(iv) A guarantee may be issued under this paragraph (e)(5) for any
Contract or Order for which an offer is submitted or an award is made
within 12 months from the date an area is designated a major disaster
area in the Federal Register. SBA may, at its discretion, extend this
time period for any particular disaster, and will publish a notice of
the extension in the Federal Register.
* * * * *
4. Amend Sec. 115.16 as follows:
a. Remove the word ``and'' at the end of paragraph (f)(3);
b. Remove the punctuation ``.'' at the end of paragraph (f)(4); and
c. Add paragraph (f)(5) to read as follows:
Sec. 115.16 Determination of Surety's Loss.
* * * * *
(f) * * *
(5) Any costs that arise from the Principal's failure to secure and
maintain insurance coverage required by the Contract or Order, or any
costs that result from any claims or judgments that exceed the amount
of any insurance coverage required by the Contract or Order, as well as
any costs that arise as a result of any agreement by the Principal in
the Contract or Order to indemnify the Obligee or any other Persons.
Karen G. Mills,
Administrator.
[FR Doc. 2010-9434 Filed 4-23-10; 8:45 am]
BILLING CODE 8025-01-P