Advisory Small Business Size Decisions, 35963-35966 [2014-14337]
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Federal Register / Vol. 79, No. 122 / Wednesday, June 25, 2014 / Proposed Rules
enhance the quality, utility, and clarity
of the information collected; and (4)
ways to minimize the burden of the
proposed collection of information on
board respondents, including through
the use of automated collection
techniques or other forms of information
technology.
Individuals and organizations may
send comments on the proposed
information collection requirement by
August 25, 2014.
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires that a
regulation that has a significant
economic impact on a substantial
number of small entities, small
businesses, or small organizations must
include an initial regulatory flexibility
analysis describing the regulation’s
impact on small entities. Such an
analysis need not be undertaken if the
agency has certified that the regulation
will not have a significant economic
impact on a substantial number of small
entities. 5 U.S.C. 605(b). FHFA has
considered the impact of the proposed
rule under the Regulatory Flexibility
Act.
The General Counsel of FHFA
certifies that the proposed rule, if
adopted as a final rule, is not likely to
have a significant economic impact on
a substantial number of small entities
because the regulation is applicable
only to the regulated entities and the
Office of Finance, which are not small
entities for purposes of the Regulatory
Flexibility Act.
List of Subjects in 12 CFR Part 1207
Discrimination, Diversity, Equal
employment opportunity, Government
contracts, Minority businesses, Office of
Finance, Outreach, Regulated entities.
Authority and Issuance
For the reasons stated in the
and under
the authority of 12 U.S.C. 4526, FHFA
proposes to amend Subpart C of part
1207 of title 12 of the Code of Federal
Regulations as follows:
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SUPPLEMENTARY INFORMATION,
PART 1207—MINORITY AND WOMEN
INCLUSION
1. The authority citation for part 1207
continues to read as follows:
■
Authority: 12 U.S.C. 4520 and 4526; 12
U.S.C. 1833e; E.O. 11478.
Subpart C—Minority and Women
Inclusion and Diversity at Regulated
Entities and the Office of Finance
SMALL BUSINESS ADMINISTRATION
2. Amend § 1207.22 by adding a new
sentence at the end of paragraph (c) to
read as follows:
RIN 3245–AG59
■
§ 1207.22 Regulated entity and Office of
Finance reports.
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(c) * * * The data required to be
reported by § 1207.23(b)(9) herein shall
be included in each annual report
beginning with the report required by
March 1, 2015.
*
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■ 3. Amend § 1207.23 as follows:
■ a. Redesignate paragraphs (b)(9)
through (19) as paragraphs (b)(10)
through (20); and
■ b. Add new paragraph (b)(9) and
amend newly redesignated paragraph
(b)(10) to read as follows:
§ 1207.23 Annual reports—format and
contents.
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(b) * * *
(9)(i) Data showing for the reporting
year by minority and gender
classification, the number of individuals
on the board of directors of each Bank
and the Office of Finance—
(A) Using data collected by each Bank
and the Office of Finance through an
information collection requesting each
director’s voluntary self-identification of
his or her minority and gender
classification without personally
identifiable information;
(B) Using the same classifications as
those on the Form EEO–1; and
(ii) A description of the outreach
activities and strategies executed during
the preceding year to promote diversity
in nominating or soliciting nominees for
positions on boards of directors of the
Banks and the Office of Finance;
(10) A comparison of the data
reported by Fannie Mae and Freddie
Mac under paragraphs (b)(1) through (8)
of this section, and by the Banks and the
Office of Finance under paragraphs
(b)(1) through (9) of this section, to such
data as reported in the previous year
together with a narrative analysis;
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Dated: June 12, 2014.
Melvin L. Watt,
Director, Federal Housing Finance Agency.
[FR Doc. 2014–14512 Filed 6–24–14; 8:45 am]
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13 CFR Part 121
Advisory Small Business Size
Decisions
Small Business Administration.
Proposed rule.
AGENCY:
ACTION:
This rule proposes to
implement provisions of the National
Defense Authorization Act of 2013
(NDAA) pertaining to small business
size. Specifically, the rule proposes to
amend the Small Business
Administration’s (SBA or Agency)
program regulations to implement
statutory provisions establishing a safe
harbor from fraud penalties for
individuals or firms that misrepresent
business concerns as being small for
purposes of Federal procurement
opportunities if they acted in good faith
reliance upon small business status
advisory opinions received from Small
Business Development Centers (SBDCs)
or Procurement Technical Assistance
Centers (PTACs). The rule also proposes
to amend SBA’s regulations to establish
the criteria small business status
advisory opinions must meet in order to
be deemed adequate and specify the
review process for such opinions.
Finally, the proposed rule would amend
SBA’s regulations to update the
circumstances under which SBA may
initiate a formal size determination.
DATES: Comments must be received on
or before August 25, 2014.
ADDRESSES: You may submit comments,
identified by RIN: 3245–AG59, [Docket
Number: SBA–2014–0007] by any of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail or Hand Delivery/Courier:
Dean R. Koppel, Assistant Director,
Office of Policy and Research, Office of
Government Contracting, U.S. Small
Business Administration, 409 3rd Street
SW., 8th Floor, Washington, DC 20416.
All comments will be posted 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 Dean R.
Koppel, Assistant Director, Office of
Policy and Research, Office of
Government Contracting, U.S. Small
Business Administration, 409 3rd Street
SW., 8th floor, Washington, DC 20416,
or send an email to dean.koppel@
sba.gov. Highlight the information that
you consider to be CBI and explain why
SUMMARY:
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you believe SBA should hold this
information as confidential. SBA will
review the information and make the
final determination whether it will
make the information public.
FOR FURTHER INFORMATION CONTACT:
Dean R. Koppel, Assistant Director,
Office of Policy and Research, Office of
Government Contracting, U.S. Small
Business Administration, 409 3rd Street
SW., 8th Floor, Washington, DC 20416;
(202) 205–7322; dean.koppel@sba.gov.
On
January 2, 2013, Congress amended the
Small Business Act to provide that the
penalties created under 15 U.S.C. 645(a)
for misrepresentation of a firm as a
small business concern do not apply to
individuals or firms that act in good
faith reliance upon small business status
advisory opinions they receive from
SBDCs or PTACs. Additionally, the
Small Business Act was amended to
give responsibility for reviewing,
accepting, or rejecting these small
business status advisory opinions to
SBA’s Office of General Counsel.
Finally, the Small Business Act was
further amended to require that SBA
promulgate regulations to implement
this safe harbor provision no later than
270 days after the date of passage of the
statutory amendment.
This rule proposes to make a number
of changes to SBA’s size regulations.
Some of the changes involve technical
issues. Other changes are more
substantive and result from SBA’s
experience in implementing the current
regulations.
The following three specific changes
are being proposed to SBA’s size
regulations.
SUPPLEMENTARY INFORMATION:
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Exemption From Penalties for
Misrepresentation of Size Status
Section 1681 of the NDAA requires
that SBA create an exemption to the
penalties imposed under 15 U.S.C.
645(a) for misrepresentation of small
business status in cases where the
person or concern making the
misrepresentation acted in good faith
reliance on a written advisory opinion
from an SBDC or PTAC. SBA’s first
proposed change is to implement the
statutory requirement at section 1681 of
the NDAA by changing SBA’s small
business size regulations.
Small Business Status Advisory
Opinions
The second proposed change to the
small business size rules is to define
what constitutes an adequate small
business status advisory opinion.
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Circumstances in Which SBA May
Request a Formal Size Determination
The third proposed change to the size
rules pertains to the circumstances
under which SBA officials may request
formal size determinations. Current
§ 121.1001(b)(9) references the Central
Contractor Registry, a procurement
related federal government database that
has been replaced by the System for
Award Management. The proposed
change clarifies the stated purpose of
this provision and updates it to refer to
the System for Award Management.
Compliance With Executive Orders
12866, 12988, 13175, and 13132, the
Regulatory Flexibility Act (5 U.S.C.
601–612), and the Paperwork
Reduction Act (44 U.S.C., Ch. 35).
Executive Order 12866
The Office of Management and Budget
(OMB) has determined that this
proposed rule does not constitute a
significant regulatory action under
Executive Order 12866, and as a result
a regulatory impact analysis is not
required.
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 this
proposed 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 determines that this
proposed rule has no federalism
implications warranting preparation of
federal assessment.
Executive Order 13175
For purposes of Executive Order
12175, SBA has determined that this
proposed rule will not have substantial
direct effects on one or more Indian
Tribes, on the relationship between the
Federal Government and Indian Tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian Tribes.
Therefore, for the purpose of Executive
Order 13175, Consultation and
Coordination with Indian Tribal
Governments, SBA determines that this
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proposed rule does not require
consultations with tribal officials or
warrant the publication of a Tribal
Summary Impact Statement.
Executive Order 13563
As part of its ongoing efforts to engage
stakeholders in the development of its
regulations, SBA consulted with
representatives from both industry and
the general public to review the intent
of the proposed rule and various
components related to it. No concerns
were raised during those calls and no
comments were raised that needed to be
addressed in this proposed rule.
Initial Regulatory Flexibility Analysis, 5
U.S.C. 601–612
This rule, if finalized, may have a
significant impact on a substantial
number of small entities within the
meaning of the Regulatory Flexibility
Act, 5 U.S.C. 601–612. In accordance
with 5 U.S.C. 603(b), SBA sets forth an
initial regulatory flexibility analysis
(IRFA) of this proposed rule addressing
the following topics: (1) The legal basis,
need for, and objective of the rule; (2)
a description and estimate of the
number of small entities to which the
rule will apply; (3) the projected
reporting, record keeping, and other
compliance requirements of the rule; (4)
the relevant Federal rules which may
duplicate, overlap or conflict with the
rule; and (5) any significant alternatives
that would allow the Agency to
accomplish its regulatory objectives
while minimizing the impact on small
entities.
1. What is the legal basis, need for,
and objective of the rule? Pursuant to
section 1681 of Public Law 112–239,
SBA is statutorily required to publish a
regulation granting an exemption from
the misrepresentation penalties imposed
under 15 U.S.C. 645(a) in cases where
a party’s erroneous claim to small
business status stems from its good faith
reliance upon an advisory opinion
issued by an SBDC or PTAC. SBA is also
obligated under section 1681 to define
via regulation what constitutes an
adequate advisory opinion and to
review and accept or reject all advisory
opinions issued by SBDCs and PTACs.
In addition to giving effect to these
statutory mandates, the proposed rule
also establishes the procedures and
timeline by which SBA will review
advisory opinions.
2. What is SBA’s description and
estimate of the number of small entities
to which the rule will apply? Because
SBA’s programs do not apply to small
governmental jurisdictions or small
organizations, only small businesses
will be affected by this proposed rule.
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Additionally, the proposed rule will not
apply to all small businesses generally,
but only to those firms that represent
themselves as being small for purposes
of federal procurement opportunities.
The safe harbor provision of the
proposed rule will only affect those
firms that incorrectly claim status as
small business concerns after obtaining
small business status advisory opinions
from SBDCs or PTACs. In Fiscal Year
2010, SBA determined that
approximately 150 firms that had
represented themselves as being small
for purposes of federal procurement
opportunities were not small. Most of
these cases did not involve fraud, but
instead were the result of errors or
misunderstandings of the size
regulations. To date, SBA is unaware of
any firms being penalized under 15
U.S.C. 645(a) for fraudulently
misrepresenting themselves as small
business concerns. Therefore, SBA
anticipates that the safe harbor
provision of the proposed rule will
impact very few concerns.
With regard to the small business
status advisory opinion provision of the
proposed rule, SBA notes that neither
SBDCs nor PTACs are required to
provide such opinions under the
language of the statute. It is currently
unknown how many SBDCs and PTACs
will elect to provide such services,
particularly given that no additional
funding will be awarded to them to
cover the cost of these services.
Moreover, it is unclear how much
demand there will be for such services
from those SBDCs and PTACs that offer
them. While it is thus impossible to
gauge the number of small businesses
that will obtain these services, SBA
anticipates that very few concerns will
be affected by the small business status
advisory opinion provision of the
proposed rule.
3. What are the projected reporting,
record keeping, and other compliance
requirements of the rule and an estimate
of the classes of small entities which
will be subject to the requirements?
There would be no additional reporting
or recordkeeping requirements imposed
by the rule, but there would be certain
minor compliance requirements.
Businesses that believe themselves to be
small and that wish to receive advisory
opinions to that effect from SBDCs or
PTACs would be required to provide
information documenting the basis for
that belief to SBDCs or PTACs and attest
to its accuracy.
4. What are the relevant Federal rules
which may duplicate, overlap or conflict
with the rule? The Federal Acquisition
Regulation (FAR) defers to and
incorporates the substance of the
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provisions set forth in SBA’s regulations
for issues pertaining to business size. To
the extent the FAR is inconsistent with
size rules implemented by SBA, the
FAR would need to be changed to be
consistent.
5. Are there any significant
alternatives that would allow the
Agency to accomplish its regulatory
objectives while minimizing the impact
on small entities? SBA has considered a
number of alternatives to the proposed
rule. One alternative SBA has
considered would have permitted firms
to simply self-certify to SBDCs or
PTACs that they are small. Another
alternative SBA considered would have
had the General Counsel review the
SBDC or PTAC advisory opinions rather
than the Associate General Counsel,
Office of Procurement Law. SBA has not
proposed the first alternative because it
would render any advisory opinion pro
forma and would not provide the
Agency with any basis for accepting or
rejecting the opinion. With regard to the
second alternative, SBA did not propose
it given the substantial time demands
already placed upon the General
Counsel. SBA believes that delegating
this responsibility to the Associate
General Counsel, Office of Procurement
Law would permit the Agency to
provide a quicker turnaround time for
reviewing advisory opinions and would
take advantage of the established subject
matter expertise of that official. SBA is
very interested in comments from the
public on these issues.
Paperwork Reduction Act, 44 U.S.C. Ch.
35
SBA has determined that this
proposed rule imposes no additional
reporting or recordkeeping requirements
under the Paperwork Reduction Act, 44
U.S.C., Chapter 35.
List of Subjects in 13 CFR Part 121
Administrative practice and
procedure, Reporting and recordkeeping
requirements, Small businesses.
For the reasons set forth in the
preamble, SBA proposes to amend 13
CFR part 121 as follows:
PART 121—SMALL BUSINESS SIZE
REGULATIONS
1. The authority citation for part 121
is revised to read as follows:
■
Authority: 15 U.S.C. 632, 634(b)(6), 636(b),
637(a), 644 and 662(5); and Pub. L. 105–135,
sec. 401 et seq., 111 Stat. 2592.
2. Amend § 121.108 by revising the
section heading and adding paragraph
(e)(4) to read as follows:
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§ 121.108 What are the penalties for
misrepresentation of size status?
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(e) * * *
(4) Limitation of Liability. An
individual or business concern will not
be subject to the penalties imposed
under 15 U.S.C. 645(a) where it acted in
good faith reliance on a small business
status advisory opinion accepted by
SBA under § 121.109.
§ 121.109
[Redesignated as § 121.110]
3. Redesignate § 121.109 as § 121.110.
4. Add new § 121.109 to read as
follows:
■
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§ 121.109 What is a small business status
advisory opinion?
(a) Defined. A small business status
advisory opinion is a written opinion
issued by either a Small Business
Development Center (SBDC) operating
under part 130 of this chapter or a
Procurement Technical Assistance
Center (PTAC) operating under 10
U.S.C. Chapter 142 which concludes
that a firm is entitled to represent itself
as a small business concern for purposes
of federal government procurement
opportunities.
(b) Submission. An SBDC or PTAC
must submit a copy of each small
business status advisory opinion it
issues to the following Agency official
for review: Associate General Counsel,
Office of Procurement Law, U.S. Small
Business Administration, 409 Third
Street SW., Washington, DC 20416 or by
fax to (202) 205–6390 marked Attn:
Small Business Status Advisory
Opinion. A small business status
advisory opinion must:
(1) Include the name, address,
Employer Identification Number or Dun
& Bradstreet Number, and one or more
principals of the covered concern.
(2) Identify the individual NAICS
code(s) and accompanying size
standard(s) to which the advisory
opinion applies.
(3) A determination that the covered
concern does not exceed the size
standard(s) dated and signed by a
counselor or similarly qualified
employee of an SBDC or PTAC.
(4) Include, as an attachment, copies
of the evidence provided by the covered
concern to the SBDC or PTAC clearly
documenting its annual receipts and/or
number of employees as those terms are
defined by §§ 121.104 and 121.106.
(5) Include, as an attachment, a
written statement signed by at least one
principal of the concern affirming that
all the information provided to the
SBDC or PTAC for the purpose of
obtaining the small business status
advisory opinion is, to the best of his/
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her knowledge, true, accurate, and
complete.
(c) Review. Unless a referral is made
under paragraph (e) of this section, SBA
will decide within 10 business days of
receiving a small business status
advisory opinion to accept or reject it
based on its consistency with this part.
SBA will provide written notification of
that decision to the SBDC or PTAC that
issued the small business status
advisory opinion as well as to the
covered concern.
(d) Reliance. A concern that receives
a small business status advisory opinion
holding that it does not exceed the
applicable size standard(s) may rely
upon that determination for purposes of
responding to federal procurement
opportunities from the date it is issued
unless and until that advisory opinion
is rejected by SBA in accordance with
paragraph (c) of this section or
§ 121.1009.
(e) Referral for Size Determination.
Nothing in this section precludes SBA
from requesting a formal size
determination for a concern that is the
subject of a small business status
advisory opinion pursuant to
§ 121.1001(b)(9).
■ 5. Amend § 121.1001 by revising
paragraph (b)(9) to read as follows:
§ 121.1001 Who may initiate a size protest
or request a formal size determination?
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(b) * * *
(9) For other purposes related to
protecting the integrity of the Federal
procurement process, including
validating that firms listed in the
System for Award Management database
are small and firms can rely upon
advisory size status opinions, the
Government Contracting Area Director
or the Director, Office of Government
Contracting may initiate a formal size
determination when sufficient
information exists that calls into
question a firm’s small business status.
The current date will be used to
determine size, and SBA will initiate
the process to remove from the database
the small business designation of any
firm found to be other than small.
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Maria Contreras-Sweet,
Administrator.
[FR Doc. 2014–14337 Filed 6–24–14; 8:45 am]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2014–0343; Directorate
Identifier 2014–NM–077–AD]
RIN 2120–AA64
Airworthiness Directives; The Boeing
Company Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
We propose to adopt a new
airworthiness directive (AD) for certain
The Boeing Company Model 747–8 and
747–8F series airplanes. This proposed
AD was prompted by an analysis by the
manufacturer, which revealed that
certain fuse pins for the strut-to-wing
attachment of the outboard aft upper
spar are susceptible to migration in the
event of a failed fuse pin through bolt.
This proposed AD would require
replacing the fuse pins for the strut-towing attachment of the outboard aft
upper spar with new fuse pins, and
replacing the access cover assemblies
with new access cover assemblies. We
are proposing this AD to prevent
migration of these fuse pins, which
could result in the complete disconnect
and loss of the strut-to-wing attachment
load path for the outboard aft upper
spar. The complete loss of an outboard
aft upper spar strut-to-wing attachment
load path could result in divergent
flutter in certain parts of the flight
envelope, which could result in loss of
control of the airplane.
DATES: We must receive comments on
this proposed AD by August 11, 2014.
ADDRESSES: You may send comments,
using the procedures found in 14 CFR
11.43 and 11.45, by any of the following
methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 202–493–2251.
• Mail: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE.,
Washington, DC 20590.
• Hand Delivery: Deliver to Mail
address above between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
For service information identified in
this proposed AD, contact Boeing
Commercial Airplanes, Attention: Data
& Services Management, P.O. Box 3707,
MC 2H–65, Seattle, WA 98124–2207;
SUMMARY:
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telephone 206–544–5000, extension 1;
fax 206–766–5680; Internet https://
www.myboeingfleet.com. You may view
this referenced service information at
the FAA, Transport Airplane
Directorate, 1601 Lind Avenue SW.,
Renton, WA 98057–3356. For
information on the availability of this
material at the FAA, call 425–227–1221.
Examining the AD Docket
You may examine the AD docket on
the Internet at https://
www.regulations.gov by searching for
and locating Docket No. FAA–2014–
0343; or in person at the Docket
Management Facility between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays. The AD docket
contains this proposed AD, the
regulatory evaluation, any comments
received, and other information. The
street address for the Docket Office
(phone: 800–647–5527) is in the
ADDRESSES section. Comments will be
available in the AD docket shortly after
receipt.
FOR FURTHER INFORMATION CONTACT:
Narinder Luthra, Aerospace Engineer,
Airframe Branch, ANM–120S, Seattle
Aircraft Certification Office (ACO),
FAA, 1601 Lind Avenue SW., Renton,
WA 98057–3356; phone: 425–917–6513;
fax: 425–917–6590; email:
narinder.luthra@faa.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
We invite you to send any written
relevant data, views, or arguments about
this proposal. Send your comments to
an address listed under the ADDRESSES
section. Include ‘‘Docket No. FAA–
2014–0343; Directorate Identifier 2014–
NM–077–AD’’ at the beginning of your
comments. We specifically invite
comments on the overall regulatory,
economic, environmental, and energy
aspects of this proposed AD. We will
consider all comments received by the
closing date and may amend this
proposed AD because of those
comments.
We will post all comments we
receive, without change, to https://
www.regulations.gov, including any
personal information you provide. We
will also post a report summarizing each
substantive verbal contact we receive
about this proposed AD.
Discussion
An analysis by Boeing revealed that
the fuse pins for the strut-to-wing
attachment of the outboard aft upper
spar on struts Nos. 1 and 4 are
susceptible to migration in the event of
a failed fuse pin through bolt. To
prevent these fuse pins from migrating
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[Federal Register Volume 79, Number 122 (Wednesday, June 25, 2014)]
[Proposed Rules]
[Pages 35963-35966]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-14337]
=======================================================================
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SMALL BUSINESS ADMINISTRATION
13 CFR Part 121
RIN 3245-AG59
Advisory Small Business Size Decisions
AGENCY: Small Business Administration.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This rule proposes to implement provisions of the National
Defense Authorization Act of 2013 (NDAA) pertaining to small business
size. Specifically, the rule proposes to amend the Small Business
Administration's (SBA or Agency) program regulations to implement
statutory provisions establishing a safe harbor from fraud penalties
for individuals or firms that misrepresent business concerns as being
small for purposes of Federal procurement opportunities if they acted
in good faith reliance upon small business status advisory opinions
received from Small Business Development Centers (SBDCs) or Procurement
Technical Assistance Centers (PTACs). The rule also proposes to amend
SBA's regulations to establish the criteria small business status
advisory opinions must meet in order to be deemed adequate and specify
the review process for such opinions. Finally, the proposed rule would
amend SBA's regulations to update the circumstances under which SBA may
initiate a formal size determination.
DATES: Comments must be received on or before August 25, 2014.
ADDRESSES: You may submit comments, identified by RIN: 3245-AG59,
[Docket Number: SBA-2014-0007] by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail or Hand Delivery/Courier: Dean R. Koppel, Assistant
Director, Office of Policy and Research, Office of Government
Contracting, U.S. Small Business Administration, 409 3rd Street SW.,
8th Floor, Washington, DC 20416.
All comments will be posted 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 Dean R.
Koppel, Assistant Director, Office of Policy and Research, Office of
Government Contracting, U.S. Small Business Administration, 409 3rd
Street SW., 8th floor, Washington, DC 20416, or send an email to
dean.koppel@sba.gov. Highlight the information that you consider to be
CBI and explain why
[[Page 35964]]
you believe SBA should hold this information as confidential. SBA will
review the information and make the final determination whether it will
make the information public.
FOR FURTHER INFORMATION CONTACT: Dean R. Koppel, Assistant Director,
Office of Policy and Research, Office of Government Contracting, U.S.
Small Business Administration, 409 3rd Street SW., 8th Floor,
Washington, DC 20416; (202) 205-7322; dean.koppel@sba.gov.
SUPPLEMENTARY INFORMATION: On January 2, 2013, Congress amended the
Small Business Act to provide that the penalties created under 15
U.S.C. 645(a) for misrepresentation of a firm as a small business
concern do not apply to individuals or firms that act in good faith
reliance upon small business status advisory opinions they receive from
SBDCs or PTACs. Additionally, the Small Business Act was amended to
give responsibility for reviewing, accepting, or rejecting these small
business status advisory opinions to SBA's Office of General Counsel.
Finally, the Small Business Act was further amended to require that SBA
promulgate regulations to implement this safe harbor provision no later
than 270 days after the date of passage of the statutory amendment.
This rule proposes to make a number of changes to SBA's size
regulations. Some of the changes involve technical issues. Other
changes are more substantive and result from SBA's experience in
implementing the current regulations.
The following three specific changes are being proposed to SBA's
size regulations.
Exemption From Penalties for Misrepresentation of Size Status
Section 1681 of the NDAA requires that SBA create an exemption to
the penalties imposed under 15 U.S.C. 645(a) for misrepresentation of
small business status in cases where the person or concern making the
misrepresentation acted in good faith reliance on a written advisory
opinion from an SBDC or PTAC. SBA's first proposed change is to
implement the statutory requirement at section 1681 of the NDAA by
changing SBA's small business size regulations.
Small Business Status Advisory Opinions
The second proposed change to the small business size rules is to
define what constitutes an adequate small business status advisory
opinion.
Circumstances in Which SBA May Request a Formal Size Determination
The third proposed change to the size rules pertains to the
circumstances under which SBA officials may request formal size
determinations. Current Sec. 121.1001(b)(9) references the Central
Contractor Registry, a procurement related federal government database
that has been replaced by the System for Award Management. The proposed
change clarifies the stated purpose of this provision and updates it to
refer to the System for Award Management.
Compliance With Executive Orders 12866, 12988, 13175, and 13132, the
Regulatory Flexibility Act (5 U.S.C. 601-612), and the Paperwork
Reduction Act (44 U.S.C., Ch. 35).
Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
proposed rule does not constitute a significant regulatory action under
Executive Order 12866, and as a result a regulatory impact analysis is
not required.
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 this
proposed 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 determines that this proposed rule has no
federalism implications warranting preparation of federal assessment.
Executive Order 13175
For purposes of Executive Order 12175, SBA has determined that this
proposed rule will not have substantial direct effects on one or more
Indian Tribes, on the relationship between the Federal Government and
Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes. Therefore, for the
purpose of Executive Order 13175, Consultation and Coordination with
Indian Tribal Governments, SBA determines that this proposed rule does
not require consultations with tribal officials or warrant the
publication of a Tribal Summary Impact Statement.
Executive Order 13563
As part of its ongoing efforts to engage stakeholders in the
development of its regulations, SBA consulted with representatives from
both industry and the general public to review the intent of the
proposed rule and various components related to it. No concerns were
raised during those calls and no comments were raised that needed to be
addressed in this proposed rule.
Initial Regulatory Flexibility Analysis, 5 U.S.C. 601-612
This rule, if finalized, may have a significant impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601-612. In accordance with 5
U.S.C. 603(b), SBA sets forth an initial regulatory flexibility
analysis (IRFA) of this proposed rule addressing the following topics:
(1) The legal basis, need for, and objective of the rule; (2) a
description and estimate of the number of small entities to which the
rule will apply; (3) the projected reporting, record keeping, and other
compliance requirements of the rule; (4) the relevant Federal rules
which may duplicate, overlap or conflict with the rule; and (5) any
significant alternatives that would allow the Agency to accomplish its
regulatory objectives while minimizing the impact on small entities.
1. What is the legal basis, need for, and objective of the rule?
Pursuant to section 1681 of Public Law 112-239, SBA is statutorily
required to publish a regulation granting an exemption from the
misrepresentation penalties imposed under 15 U.S.C. 645(a) in cases
where a party's erroneous claim to small business status stems from its
good faith reliance upon an advisory opinion issued by an SBDC or PTAC.
SBA is also obligated under section 1681 to define via regulation what
constitutes an adequate advisory opinion and to review and accept or
reject all advisory opinions issued by SBDCs and PTACs. In addition to
giving effect to these statutory mandates, the proposed rule also
establishes the procedures and timeline by which SBA will review
advisory opinions.
2. What is SBA's description and estimate of the number of small
entities to which the rule will apply? Because SBA's programs do not
apply to small governmental jurisdictions or small organizations, only
small businesses will be affected by this proposed rule.
[[Page 35965]]
Additionally, the proposed rule will not apply to all small businesses
generally, but only to those firms that represent themselves as being
small for purposes of federal procurement opportunities.
The safe harbor provision of the proposed rule will only affect
those firms that incorrectly claim status as small business concerns
after obtaining small business status advisory opinions from SBDCs or
PTACs. In Fiscal Year 2010, SBA determined that approximately 150 firms
that had represented themselves as being small for purposes of federal
procurement opportunities were not small. Most of these cases did not
involve fraud, but instead were the result of errors or
misunderstandings of the size regulations. To date, SBA is unaware of
any firms being penalized under 15 U.S.C. 645(a) for fraudulently
misrepresenting themselves as small business concerns. Therefore, SBA
anticipates that the safe harbor provision of the proposed rule will
impact very few concerns.
With regard to the small business status advisory opinion provision
of the proposed rule, SBA notes that neither SBDCs nor PTACs are
required to provide such opinions under the language of the statute. It
is currently unknown how many SBDCs and PTACs will elect to provide
such services, particularly given that no additional funding will be
awarded to them to cover the cost of these services. Moreover, it is
unclear how much demand there will be for such services from those
SBDCs and PTACs that offer them. While it is thus impossible to gauge
the number of small businesses that will obtain these services, SBA
anticipates that very few concerns will be affected by the small
business status advisory opinion provision of the proposed rule.
3. What are the projected reporting, record keeping, and other
compliance requirements of the rule and an estimate of the classes of
small entities which will be subject to the requirements? There would
be no additional reporting or recordkeeping requirements imposed by the
rule, but there would be certain minor compliance requirements.
Businesses that believe themselves to be small and that wish to receive
advisory opinions to that effect from SBDCs or PTACs would be required
to provide information documenting the basis for that belief to SBDCs
or PTACs and attest to its accuracy.
4. What are the relevant Federal rules which may duplicate, overlap
or conflict with the rule? The Federal Acquisition Regulation (FAR)
defers to and incorporates the substance of the provisions set forth in
SBA's regulations for issues pertaining to business size. To the extent
the FAR is inconsistent with size rules implemented by SBA, the FAR
would need to be changed to be consistent.
5. Are there any significant alternatives that would allow the
Agency to accomplish its regulatory objectives while minimizing the
impact on small entities? SBA has considered a number of alternatives
to the proposed rule. One alternative SBA has considered would have
permitted firms to simply self-certify to SBDCs or PTACs that they are
small. Another alternative SBA considered would have had the General
Counsel review the SBDC or PTAC advisory opinions rather than the
Associate General Counsel, Office of Procurement Law. SBA has not
proposed the first alternative because it would render any advisory
opinion pro forma and would not provide the Agency with any basis for
accepting or rejecting the opinion. With regard to the second
alternative, SBA did not propose it given the substantial time demands
already placed upon the General Counsel. SBA believes that delegating
this responsibility to the Associate General Counsel, Office of
Procurement Law would permit the Agency to provide a quicker turnaround
time for reviewing advisory opinions and would take advantage of the
established subject matter expertise of that official. SBA is very
interested in comments from the public on these issues.
Paperwork Reduction Act, 44 U.S.C. Ch. 35
SBA has determined that this proposed rule imposes no additional
reporting or recordkeeping requirements under the Paperwork Reduction
Act, 44 U.S.C., Chapter 35.
List of Subjects in 13 CFR Part 121
Administrative practice and procedure, Reporting and recordkeeping
requirements, Small businesses.
For the reasons set forth in the preamble, SBA proposes to amend 13
CFR part 121 as follows:
PART 121--SMALL BUSINESS SIZE REGULATIONS
0
1. The authority citation for part 121 is revised to read as follows:
Authority: 15 U.S.C. 632, 634(b)(6), 636(b), 637(a), 644 and
662(5); and Pub. L. 105-135, sec. 401 et seq., 111 Stat. 2592.
0
2. Amend Sec. 121.108 by revising the section heading and adding
paragraph (e)(4) to read as follows:
Sec. 121.108 What are the penalties for misrepresentation of size
status?
* * * * *
(e) * * *
(4) Limitation of Liability. An individual or business concern will
not be subject to the penalties imposed under 15 U.S.C. 645(a) where it
acted in good faith reliance on a small business status advisory
opinion accepted by SBA under Sec. 121.109.
Sec. 121.109 [Redesignated as Sec. 121.110]
0
3. Redesignate Sec. 121.109 as Sec. 121.110.
0
4. Add new Sec. 121.109 to read as follows:
Sec. 121.109 What is a small business status advisory opinion?
(a) Defined. A small business status advisory opinion is a written
opinion issued by either a Small Business Development Center (SBDC)
operating under part 130 of this chapter or a Procurement Technical
Assistance Center (PTAC) operating under 10 U.S.C. Chapter 142 which
concludes that a firm is entitled to represent itself as a small
business concern for purposes of federal government procurement
opportunities.
(b) Submission. An SBDC or PTAC must submit a copy of each small
business status advisory opinion it issues to the following Agency
official for review: Associate General Counsel, Office of Procurement
Law, U.S. Small Business Administration, 409 Third Street SW.,
Washington, DC 20416 or by fax to (202) 205-6390 marked Attn: Small
Business Status Advisory Opinion. A small business status advisory
opinion must:
(1) Include the name, address, Employer Identification Number or
Dun & Bradstreet Number, and one or more principals of the covered
concern.
(2) Identify the individual NAICS code(s) and accompanying size
standard(s) to which the advisory opinion applies.
(3) A determination that the covered concern does not exceed the
size standard(s) dated and signed by a counselor or similarly qualified
employee of an SBDC or PTAC.
(4) Include, as an attachment, copies of the evidence provided by
the covered concern to the SBDC or PTAC clearly documenting its annual
receipts and/or number of employees as those terms are defined by
Sec. Sec. 121.104 and 121.106.
(5) Include, as an attachment, a written statement signed by at
least one principal of the concern affirming that all the information
provided to the SBDC or PTAC for the purpose of obtaining the small
business status advisory opinion is, to the best of his/
[[Page 35966]]
her knowledge, true, accurate, and complete.
(c) Review. Unless a referral is made under paragraph (e) of this
section, SBA will decide within 10 business days of receiving a small
business status advisory opinion to accept or reject it based on its
consistency with this part. SBA will provide written notification of
that decision to the SBDC or PTAC that issued the small business status
advisory opinion as well as to the covered concern.
(d) Reliance. A concern that receives a small business status
advisory opinion holding that it does not exceed the applicable size
standard(s) may rely upon that determination for purposes of responding
to federal procurement opportunities from the date it is issued unless
and until that advisory opinion is rejected by SBA in accordance with
paragraph (c) of this section or Sec. 121.1009.
(e) Referral for Size Determination. Nothing in this section
precludes SBA from requesting a formal size determination for a concern
that is the subject of a small business status advisory opinion
pursuant to Sec. 121.1001(b)(9).
0
5. Amend Sec. 121.1001 by revising paragraph (b)(9) to read as
follows:
Sec. 121.1001 Who may initiate a size protest or request a formal
size determination?
* * * * *
(b) * * *
(9) For other purposes related to protecting the integrity of the
Federal procurement process, including validating that firms listed in
the System for Award Management database are small and firms can rely
upon advisory size status opinions, the Government Contracting Area
Director or the Director, Office of Government Contracting may initiate
a formal size determination when sufficient information exists that
calls into question a firm's small business status. The current date
will be used to determine size, and SBA will initiate the process to
remove from the database the small business designation of any firm
found to be other than small.
* * * * *
Maria Contreras-Sweet,
Administrator.
[FR Doc. 2014-14337 Filed 6-24-14; 8:45 am]
BILLING CODE 8025-01-P
