Small Businesses in U.S. Territories; Eligibility of the Commonwealth of the Northern Mariana Islands, 50925-50928 [2022-17828]
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50925
Rules and Regulations
Federal Register
Vol. 87, No. 160
Friday, August 19, 2022
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
SMALL BUSINESS ADMINISTRATION
13 CFR Parts 125 and 129
RIN 3245–AH72
Small Businesses in U.S. Territories;
Eligibility of the Commonwealth of the
Northern Mariana Islands
U.S. Small Business
Administration.
ACTION: Direct final rule.
AGENCY:
This direct final rule
implements a provision of the National
Defense Authorization Act (NDAA)
Fiscal Year 2021 (FY 2021) by defining
a covered territory business as a small
business in the U.S. Virgin Islands,
American Samoa, Guam, and the
Commonwealth of the Northern Mariana
Islands. Covered territory businesses
would be newly qualified for surplus
personal property distributions, and
covered territory mentors would receive
contracting incentives for mentoring
prote´ge´ firms that are covered territory
businesses.
DATES: This rule is effective on October
18, 2022, without further action, unless
significant adverse comments are
received by September 19, 2022. If
significant adverse comment is received,
SBA will publish a timely withdrawal of
the rule in the Federal Register.
ADDRESSES: You may submit comments,
identified by RIN 3245–AH72, by any of
the following methods:
• Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Email: Donna Fudge, Procurement
Analyst, Office of Policy Planning and
Liaison, Small Business Administration,
at Donna.Fudge@sba.gov.
SBA will post all comments on
https://www.regulations.gov. If you wish
to submit confidential business
information (CBI), as defined in the User
Notice at https://www.regulations.gov,
please submit the information to Donna
Fudge, Small Business Administration
at Donna.Fudge@sba.gov. Highlight the
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SUMMARY:
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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 on whether it will
publish the information.
FOR FURTHER INFORMATION CONTACT:
Donna Fudge, Procurement Analyst,
Office of Policy Planning and Liaison,
Small Business Administration, at
Donna.Fudge@sba.gov, (202) 205–6363.
If you are deaf, hard of hearing, or have
a speech disability, please dial 7–1–1 to
access telecommunications relay
services.
SUPPLEMENTARY INFORMATION:
Additionally, section 866 created two
new incentives for SBA’s small business
mentor-prote´ge´ program for mentorprote´ge´ pairs in which the prote´ge´ is a
covered territory business. First, the
mentor would receive positive
consideration in its past-performance
evaluations. Second, if the mentor
incurs costs training the prote´ge´, the
mentor is able to apply those costs as
subcontracting expenses and count
them toward subcontracting goals
contained in the mentor’s
subcontracting plans. These incentives
already exist for mentors with prote´ge´s
that are Puerto Rico businesses.
I. Background Information
This direct final rule adds the U.S.
Virgin Islands, American Samoa, Guam,
and the Commonwealth of the Northern
Mariana Islands (CNMI) to the list of
territories from which small businesses
are eligible for preferential treatment
under two government programs: the
surplus property program and the SBA
mentor-prote´ge´ program for government
contracting. These changes are required
by NDAA FY21, Public Law 116–283.
Section 866 of NDAA FY21 defined a
‘‘covered territory business’’ as a small
business concern that has its principal
office located in one of the following: (1)
the U.S. Virgin Islands; (2) American
Samoa; (3) Guam; or (4) the CNMI.
Under the law, a covered territory
business receives priority for surplus
property transfers for four years after the
enactment of NDAA FY21, which
occurred on January 1, 2021. This direct
final rule extends the changes that SBA
made in a prior rulemaking about the
surplus property program (Use of
Federal Surplus Property for VeteranOwned Small Businesses, and Small
Businesses in Disaster Areas and Puerto
Rico, 85 FR 69120, effective December
2, 2020). SBA is amending part 129 of
its regulations to add a covered territory
business to the eligibility list for the
surplus property program, through
January 1, 2025. SBA is treating covered
territory businesses similarly to
businesses located in Puerto Rico: a
covered territory business would have
its principal place of business located in
its respective covered territory. For
example, in order for a small business
to be considered located in Guam, the
small business should have a physical
location in Guam.
13 CFR 125.1
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II. Section-by-Section Analysis
SBA adds a definition for ‘‘covered
territory business.’’ A covered territory
business is a small business with its
principal office located in the U.S.
Virgin Islands, American Samoa, Guam,
or the CNMI.
13 CFR 125.9
SBA adds a covered territory business
to paragraph (b)(3)(ii) so that a mentorprote´ge´ relationship with a covered
territory business does not count toward
the mentor’s limit on the number of
prote´ge´s. Generally, a mentor is only
allowed three prote´ge´s at a time. A
prote´ge´ does not count, however, if the
prote´ge´ has its principal office located
in Puerto Rico or qualifies as a covered
territory business.
SBA adds a covered territory business
to paragraph (d)(6), which currently lists
the special incentives for mentors with
a prote´ge´ that is located in Puerto Rico.
Such a mentor is able to receive positive
consideration for the mentor’s past
performance evaluation and applying
costs of training the prote´ge´ to the
subcontracting goals in its
subcontracting plan.
13 CFR Part 129
This direct final rule revises the title
of part 129 to incorporate the term
‘‘covered territory businesses’’ to align
the title with the amendments being
made to the part via this rule.
13 CFR 129, Subpart C
This direct final rule changes the title
of subpart C, which currently covers
Puerto Rico businesses, to incorporate
covered territory businesses into the list
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Federal Register / Vol. 87, No. 160 / Friday, August 19, 2022 / Rules and Regulations
of small businesses eligible to receive
Federal surplus property.
power and responsibilities between the
Federal Government and Indian tribes.
13 CFR 129.301
Executive Order 13563
Executive Order 13563 reaffirms the
principles of Executive Order 12866
while calling for improvements in the
nation’s regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. Executive Order 13563 also
requires that regulations be based on the
open exchange of information and
perspectives among state and local
officials, affected stakeholders in the
private sector, and the public as a
whole. SBA has developed this rule in
a manner consistent with these
requirements. While developing this
rule, SBA responded to specific
inquiries from government officials and
the public regarding the implementation
of the statutory required changes.
The direct final rule adds the
definition of a covered territory
business. Additionally, the direct final
rule revises the definition of covered
period to specify that, for a covered
territory business, the covered period
ends on January 1, 2025.
A covered territory business will be
able to obtain surplus property from its
territory’s State Agency for Surplus
Property, in accordance with the same
regulations that currently apply to
Puerto Rico businesses.
III. Compliance With Executive Orders
12866, 12988, 13132, 13175, 13563, the
Congressional Review Act (5 U.S.C.
801–808), the Paperwork Reduction Act
(44 U.S.C., Ch. 35), the Regulatory
Flexibility Act, (5 U.S.C. 601–612), and
the Administrative Procedure Act (5
U.S.C. 553)
Executive Order 12866
The Office of Management and Budget
(OMB) has determined that this direct
final rule is a not a significant regulatory
action for the purposes of Executive
Order 12866.
Executive Order 12988
This direct final rule 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 the purposes of Executive Order
13132, Federalism, SBA has determined
that this direct final 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, SBA
has determined that this direct final rule
has no federalism implications
warranting preparation of a federalism
assessment.
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Executive Order 13175
This direct final rule does not have
tribal implications under Executive
Order 13175, Consultation and
Coordination with Indian Tribal
Governments, because it would not have
a substantial direct effect on one or
more Indian tribes, on the relationship
between the Federal Government and
Indian tribes, or on the distribution of
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Congressional Review Act
Subtitle E of the Small Business
Regulatory Enforcement Fairness Act of
1996 (codified at 5 U.S.C. 801–808), also
known as the Congressional Review Act
or CRA, generally provides that before a
rule may take effect, the agency
promulgating the rule must submit a
rule report, which includes a copy of
the rule, to each House of the Congress
and to the Comptroller General of the
United States. SBA will submit a report
containing this rule and other required
information to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States. A major rule under the CRA
cannot take effect until 60 days after it
is published in the Federal Register.
OMB’s Office of Information and
Regulatory Affairs has determined that
this rule is not a ‘‘major rule’’ as defined
by 5 U.S.C. 804(2).
Paperwork Reduction Act
SBA has determined that this direct
final rule does not impose additional
reporting or recordkeeping requirements
under the Paperwork Reduction Act, 44
U.S.C., Chapter 35.
Regulatory Flexibility Act
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
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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. The RFA
defines ‘‘small entity’’ to include ‘‘small
businesses,’’ ‘‘small organization,’’ and
‘‘small governmental jurisdictions.’’
This Direct Final Rule adds the U.S.
Virgin Islands, American Samoa, Guam,
and the Commonwealth of the Northern
Mariana Islands (CNMI) to the list of
territories from which small businesses
are eligible for preferential treatment
under two government programs: the
surplus property program and the SBA
mentor-prote´ge´ program for government
contracting. This rule relates to small
business concerns but would not affect
‘‘small organizations’’ or ‘‘small
governmental jurisdictions’’ because the
programs affected generally apply only
to ‘‘business concerns’’ as defined by
SBA regulations; in other words, to
small businesses organized for profit.
‘‘Small organizations’’ or ‘‘small
governmental jurisdictions’’ are nonprofits or governmental entities and do
not generally qualify as ‘‘business
concerns’’ within the meaning of SBA’s
regulations.
SBA identified 219 small business
vendors across the covered territories
for FY2021 that had sold to the Federal
government and therefore would benefit
from the changes to SBA’s mentorprote´ge´ program. Based on the number
of small business vendors across the
covered territories affected, SBA
believes that the rule will not have an
impact on a substantial number of
entities nor a significant economic
impact.
Accordingly, the Administrator of the
SBA hereby certifies that this rule will
not have a significant economic impact
on a substantial number of small
entities. SBA invites comments from
members of the public who believe
there will be a significant impact on any
small entities, including small
businesses.
Administrative Procedure Act—
Justification for Direct Final Rule
In general, SBA publishes a rule for
public comment before issuing a final
rule, in accordance with the
Administrative Procedure Act. 5 U.S.C.
553. The Administrative Procedure Act
provides an exception to this standard
rulemaking process, however, where an
agency finds good cause to adopt a rule
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without prior public participation. 5
U.S.C. 553(b)(3)(B). The good cause
requirement is satisfied when prior
public participation is impracticable,
unnecessary, or contrary to the public
interest.
SBA is publishing this rule as a direct
final rule because public participation is
unnecessary. SBA views this as a noncontroversial administrative action
because it merely implements a change
required by the Small Business Act, as
amended by section 866 of NDAA FY21.
This rule will be effective on the date
shown in the DATES section unless SBA
receives significant adverse comment on
or before the deadline for comments.
Significant adverse comments are
comments that provide strong
justifications why the rule should not be
adopted or for changing the rule. SBA
does not expect to receive any
significant adverse comments because
the rule simply mirrors the statutory
language contained in section 866 of
NDAA FY21, with no extraneous
interpretation or other expanded text.
If SBA receives significant adverse
comment, SBA will publish a notice in
the Federal Register withdrawing this
rule before the effective date. If SBA
receives no significant adverse
comments, the rule will be effective 60
days after publication without further
notice.
List of Subjects
13 CFR Part 125
Government contracts, Government
procurement, Reporting and
recordkeeping requirements, Small
businesses, Technical assistance.
13 CFR Part 129
Administrative practice and
procedure, Government contracts,
Government procurement, Government
property, Reporting and recordkeeping
requirements, Small businesses.
For the reasons stated in the
preamble, SBA amends 13 CFR parts
125 and 129 as follows:
PART 125–GOVERNMENT
CONTRACTING PROGRAMS
Authority: 15 U.S.C. 632(p), (q), 634(b)(6),
637, 644, 657b, 657(f), and 657r.
2. Amend § 125.1 by adding a
definition for ‘‘Covered territory
business’’ in alphabetical order to read
as follows:
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■
§ 125.1 What definitions are important to
SBA’s Government Contracting Programs?
*
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*
16:42 Aug 18, 2022
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*
*
*
*
*
(b) * * *
(3) * * *
(ii) * * * However, the first two
mentor-prote´ge´ relationships approved
by SBA between a specific mentor and
a covered territory business, or a
specific mentor and a small business
that has its principal office located in
the Commonwealth of Puerto Rico, do
not count against the limit of three
proteges that a mentor can have at one
time.
*
*
*
*
*
(d) * * *
(6) A mentor that provides a
subcontract to its prote´ge´ that is a
covered territory business, or that has its
principal office located in the
Commonwealth of Puerto Rico, may:
*
*
*
*
*
PART 129—CONTRACTS FOR SMALL
BUSINESSES LOCATED IN DISASTER
AREAS, AND SURPLUS PERSONAL
PROPERTY FOR SMALL BUSINESSES
LOCATED IN DISASTER AREAS,
PUERTO RICO, AND COVERED
TERRITORY BUSINESSES.
4. The authority citation for part 129
continues to read as follows:
■
Authority: 15 U.S.C. 636(j)(13)(F)(ii), (iii),
and 644(f).
5. Revise the heading for part 129 to
read as set forth above.
■ 6. Revise the heading for subpart C to
read as follows:
1. The authority citation for part 125
continues to read as follows:
*
§ 125.9 What are the rules governing
SBA’s small business mentor-prote´ge´
program?
■
■
*
Covered territory business means a
small business concern that has its
principal office located in one of the
following:
(1) The United States Virgin Islands;
(2) American Samoa;
(3) Guam; or
(4) The Commonwealth of the
Northern Mariana Islands.
*
*
*
*
*
■ 3. Amend § 125.9 by revising the
second sentence in paragraph (b)(3)(ii)
and revising paragraph (d)(6)
introductory text to read as follows:
Subpart C—Surplus Personal Property
for Small Businesses Located in
Puerto Rico and for Covered Territory
Businesses
7. Amend § 129.300 by revising the
definition of ‘‘Covered period’’ and by
adding a definition for ‘‘Covered
territory business’’ in alphabetical order
to read as follows:
■
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50927
§ 129.300 What definitions are important in
this subpart?
Covered period means:
(1) In the case of a Puerto Rico
business, the period beginning on
August 13, 2018 and ending on the date
which the Oversight Board established
under section 101 of the Puerto Rico
Oversight, Management, and Economic
Stability Act (48 U.S.C. 2121)
terminates. 15 U.S.C. 636(j)(13)(F)(iii);
or
(2) In the case of a Covered territory
business, the period beginning on
January 1, 2021, the period ending on
January 1, 2025. 15 U.S.C.
636(j)(13)(f)(iii).
Covered territory business means a
small business concern that has its
principal office located in one of the
following:
(1) The United States Virgin Islands;
(2) American Samoa;
(3) Guam; or
(4) The Commonwealth of the
Northern Mariana Islands.
*
*
*
*
*
■ 8. Amend § 129.301 by revising the
section heading and paragraphs (a),
(b)(1), and (c)(1) introductory text and
by redesignating paragraph (f) as
paragraph (e).
The revisions read as follows:
§ 129.301 How does a covered territory
business or small business concern located
in Puerto Rico obtain Federal surplus
personal property?
(a) General. Pursuant to 15 U.S.C.
636(j)(13)(F)(iii), eligible covered
territory businesses may receive surplus
Federal Government property from their
territory State Agency for Surplus
Property (SASP), and eligible small
business concerns located in Puerto
Rico may receive such property from the
Puerto Rico SASP. The procedures set
forth in 41 CFR part 102–37 and this
section will be used to transfer surplus
personal property to eligible small
business concerns. The property which
may be transferred to the territory SASP
or the Puerto Rico SASP for further
transfer to eligible small business
concerns includes all personal property
which has become available for
donation pursuant to 41 CFR 102–37.30.
(b) * * *
(1) Be a covered territory business or
be located in Puerto Rico;
*
*
*
*
*
(c) * * *
(1) Eligible concerns may acquire
surplus Federal personal property from
their territory SASP or, for a Puerto Rico
concern, the Puerto Rico SASP,
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Federal Register / Vol. 87, No. 160 / Friday, August 19, 2022 / Rules and Regulations
provided the concern represents and
agrees in writing:
*
*
*
*
*
Isabella Casillas Guzman,
Administrator.
[FR Doc. 2022–17828 Filed 8–18–22; 8:45 am]
BILLING CODE 8026–09–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Docket No. FAA–2022–0693; Airspace
Docket No. 22–ASW–12]
RIN 2120–AA66
Amendment of the Class D and Class
E Airspace; Victoria, TX
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
This action amends the Class
D and Class E airspace at Victoria, TX.
The FAA is taking this action due to a
biennial airspace review. The
geographic coordinates of the airport are
also being updated to coincide with the
FAA’s aeronautical database.
DATES: Effective 0901 UTC, November 3,
2022. The Director of the Federal
Register approves this incorporation by
reference action under 1 CFR part 51,
subject to the annual revision of FAA
Order JO 7400.11 and publication of
conforming amendments.
ADDRESSES: FAA Order JO 7400.11F,
Airspace Designations and Reporting
Points, and subsequent amendments can
be viewed online at www.faa.gov/air_
traffic/publications/. For further
information, you can contact the
Airspace Policy Group, Federal Aviation
Administration, 800 Independence
Avenue SW, Washington, DC 20591;
telephone: (202) 267–8783.
FOR FURTHER INFORMATION CONTACT:
Jeffrey Claypool, Federal Aviation
Administration, Operations Support
Group, Central Service Center, 10101
Hillwood Parkway, Fort Worth, TX
76177; telephone (817) 222–5711.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
Authority for This Rulemaking
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the United States Code.
Subtitle I, Section 106 describes the
authority of the FAA Administrator.
Subtitle VII, Aviation Programs,
describes in more detail the scope of the
agency’s authority. This rulemaking is
promulgated under the authority
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described in Subtitle VII, Part A,
Subpart I, Section 40103. Under that
section, the FAA is charged with
prescribing regulations to assign the use
of airspace necessary to ensure the
safety of aircraft and the efficient use of
airspace. This regulation is within the
scope of that authority as it amends the
Class D airspace, the Class E surface
airspace, and the Class E airspace
extending upward from 700 feet above
the surface at Victoria Regional Airport,
Victoria, TX, to support instrument
flight rule operations at this airport.
History
The FAA published a notice of
proposed rulemaking in the Federal
Register (87 FR 33080; June 1, 2022) for
Docket No. FAA–2022–0693 to amend
the Class D and Class E airspace at
Victoria, TX. Interested parties were
invited to participate in this rulemaking
effort by submitting written comments
on the proposal to the FAA. No
comments were received.
Class D and E airspace designations
are published in paragraphs 5000, 6002,
and 6005, respectively, of FAA Order JO
7400.11F, dated August 10, 2021, and
effective September 15, 2021, which is
incorporated by reference in 14 CFR
71.1. The Class D and E airspace
designations listed in this document
will be published subsequently in FAA
Order JO 7400.11F.
Availability and Summary of
Documents for Incorporation by
Reference
This document amends FAA Order JO
7400.11F, Airspace Designations and
Reporting Points, dated August 10,
2021, and effective September 15, 2021.
FAA Order JO 7400.11F is publicly
available as listed in the ADDRESSES
section of this document. FAA Order JO
7400.11F lists Class A, B, C, D, and E
airspace areas, air traffic service routes,
and reporting points.
The Rule
This amendment to 14 CFR 71:
Amends the Class D airspace to
within a 4.6-mile (decreased from a 4.7mile) radius of Victoria Regional
Airport, Victoria, TX; updates the
geographic coordinates of the airport to
coincide with the FAA’s aeronautical
database; and replaces the outdated
terms of ‘‘Notice to Airmen’’ with
‘‘Notice to Air Missions’’ and ‘‘Airport/
Facility Directory’’ with ‘‘Chart
Supplement’’;
Amends the Class E surface area to
within a 4.6-mile radius (decreased from
a 4.7-mile) radius of Victoria Regional
Airport; adds missing part-time
language to the airspace legal
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Sfmt 4700
description; and updates the geographic
coordinates of the airport to coincide
with the FAA’s aeronautical database;
And amends the Class E airspace
extending upward from 700 feet above
the surface at Victoria Regional Airport
by amending the northwest extension to
2.4 (increased from 1.9) miles each side
of the 307° (previously 312°) bearing
from the Victoria VOR/DME (previously
the airport) extending from the 7.1-mile
radius to 11.3 (decreased from 12.8)
miles northwest of the airport; and
updates the geographic coordinates of
the airport to coincide with the FAA’s
aeronautical database.
This action is the result of an airspace
review conducted as part a biennial
airspace review.
FAA Order JO 7400.11, Airspace
Designations and Reporting Points, is
published yearly and effective on
September 15.
Regulatory Notices and Analyses
The FAA has determined that this
regulation only involves an established
body of technical regulations for which
frequent and routine amendments are
necessary to keep them operationally
current, is non-controversial and
unlikely to result in adverse or negative
comments. It, therefore: (1) is not a
‘‘significant regulatory action’’ under
Executive Order 12866; (2) is not a
‘‘significant rule’’ under DOT
Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3)
does not warrant preparation of a
regulatory evaluation as the anticipated
impact is so minimal. Since this is a
routine matter that only affects air traffic
procedures and air navigation, it is
certified that this rule, when
promulgated, does not have a significant
economic impact on a substantial
number of small entities under the
criteria of the Regulatory Flexibility Act.
Environmental Review
The FAA has determined that this
action qualifies for categorical exclusion
under the National Environmental
Policy Act in accordance with FAA
Order 1050.1F, ‘‘Environmental
Impacts: Policies and Procedures,’’
paragraph 5–6.5.a. This airspace action
is not expected to cause any potentially
significant environmental impacts, and
no extraordinary circumstances exist
that warrant preparation of an
environmental assessment.
Lists of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
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Agencies
[Federal Register Volume 87, Number 160 (Friday, August 19, 2022)]
[Rules and Regulations]
[Pages 50925-50928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17828]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 87, No. 160 / Friday, August 19, 2022 / Rules
and Regulations
[[Page 50925]]
SMALL BUSINESS ADMINISTRATION
13 CFR Parts 125 and 129
RIN 3245-AH72
Small Businesses in U.S. Territories; Eligibility of the
Commonwealth of the Northern Mariana Islands
AGENCY: U.S. Small Business Administration.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: This direct final rule implements a provision of the National
Defense Authorization Act (NDAA) Fiscal Year 2021 (FY 2021) by defining
a covered territory business as a small business in the U.S. Virgin
Islands, American Samoa, Guam, and the Commonwealth of the Northern
Mariana Islands. Covered territory businesses would be newly qualified
for surplus personal property distributions, and covered territory
mentors would receive contracting incentives for mentoring
prot[eacute]g[eacute] firms that are covered territory businesses.
DATES: This rule is effective on October 18, 2022, without further
action, unless significant adverse comments are received by September
19, 2022. If significant adverse comment is received, SBA will publish
a timely withdrawal of the rule in the Federal Register.
ADDRESSES: You may submit comments, identified by RIN 3245-AH72, by any
of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Email: Donna Fudge, Procurement Analyst, Office of Policy
Planning and Liaison, Small Business Administration, at
[email protected].
SBA will post all comments on https://www.regulations.gov. If you
wish to submit confidential business information (CBI), as defined in
the User Notice at https://www.regulations.gov, please submit the
information to Donna Fudge, Small Business Administration at
[email protected]. 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 on whether it will publish the information.
FOR FURTHER INFORMATION CONTACT: Donna Fudge, Procurement Analyst,
Office of Policy Planning and Liaison, Small Business Administration,
at [email protected], (202) 205-6363. If you are deaf, hard of
hearing, or have a speech disability, please dial 7-1-1 to access
telecommunications relay services.
SUPPLEMENTARY INFORMATION:
I. Background Information
This direct final rule adds the U.S. Virgin Islands, American
Samoa, Guam, and the Commonwealth of the Northern Mariana Islands
(CNMI) to the list of territories from which small businesses are
eligible for preferential treatment under two government programs: the
surplus property program and the SBA mentor-prot[eacute]g[eacute]
program for government contracting. These changes are required by NDAA
FY21, Public Law 116-283.
Section 866 of NDAA FY21 defined a ``covered territory business''
as a small business concern that has its principal office located in
one of the following: (1) the U.S. Virgin Islands; (2) American Samoa;
(3) Guam; or (4) the CNMI.
Under the law, a covered territory business receives priority for
surplus property transfers for four years after the enactment of NDAA
FY21, which occurred on January 1, 2021. This direct final rule extends
the changes that SBA made in a prior rulemaking about the surplus
property program (Use of Federal Surplus Property for Veteran-Owned
Small Businesses, and Small Businesses in Disaster Areas and Puerto
Rico, 85 FR 69120, effective December 2, 2020). SBA is amending part
129 of its regulations to add a covered territory business to the
eligibility list for the surplus property program, through January 1,
2025. SBA is treating covered territory businesses similarly to
businesses located in Puerto Rico: a covered territory business would
have its principal place of business located in its respective covered
territory. For example, in order for a small business to be considered
located in Guam, the small business should have a physical location in
Guam.
Additionally, section 866 created two new incentives for SBA's
small business mentor-prot[eacute]g[eacute] program for mentor-
prot[eacute]g[eacute] pairs in which the prot[eacute]g[eacute] is a
covered territory business. First, the mentor would receive positive
consideration in its past-performance evaluations. Second, if the
mentor incurs costs training the prot[eacute]g[eacute], the mentor is
able to apply those costs as subcontracting expenses and count them
toward subcontracting goals contained in the mentor's subcontracting
plans. These incentives already exist for mentors with
prot[eacute]g[eacute]s that are Puerto Rico businesses.
II. Section-by-Section Analysis
13 CFR 125.1
SBA adds a definition for ``covered territory business.'' A covered
territory business is a small business with its principal office
located in the U.S. Virgin Islands, American Samoa, Guam, or the CNMI.
13 CFR 125.9
SBA adds a covered territory business to paragraph (b)(3)(ii) so
that a mentor-prot[eacute]g[eacute] relationship with a covered
territory business does not count toward the mentor's limit on the
number of prot[eacute]g[eacute]s. Generally, a mentor is only allowed
three prot[eacute]g[eacute]s at a time. A prot[eacute]g[eacute] does
not count, however, if the prot[eacute]g[eacute] has its principal
office located in Puerto Rico or qualifies as a covered territory
business.
SBA adds a covered territory business to paragraph (d)(6), which
currently lists the special incentives for mentors with a
prot[eacute]g[eacute] that is located in Puerto Rico. Such a mentor is
able to receive positive consideration for the mentor's past
performance evaluation and applying costs of training the
prot[eacute]g[eacute] to the subcontracting goals in its subcontracting
plan.
13 CFR Part 129
This direct final rule revises the title of part 129 to incorporate
the term ``covered territory businesses'' to align the title with the
amendments being made to the part via this rule.
13 CFR 129, Subpart C
This direct final rule changes the title of subpart C, which
currently covers Puerto Rico businesses, to incorporate covered
territory businesses into the list
[[Page 50926]]
of small businesses eligible to receive Federal surplus property.
13 CFR 129.301
The direct final rule adds the definition of a covered territory
business. Additionally, the direct final rule revises the definition of
covered period to specify that, for a covered territory business, the
covered period ends on January 1, 2025.
A covered territory business will be able to obtain surplus
property from its territory's State Agency for Surplus Property, in
accordance with the same regulations that currently apply to Puerto
Rico businesses.
III. Compliance With Executive Orders 12866, 12988, 13132, 13175,
13563, the Congressional Review Act (5 U.S.C. 801-808), the Paperwork
Reduction Act (44 U.S.C., Ch. 35), the Regulatory Flexibility Act, (5
U.S.C. 601-612), and the Administrative Procedure Act (5 U.S.C. 553)
Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
direct final rule is a not a significant regulatory action for the
purposes of Executive Order 12866.
Executive Order 12988
This direct final rule 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 the purposes of Executive Order 13132, Federalism, SBA has
determined that this direct final 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, SBA has determined that this
direct final rule has no federalism implications warranting preparation
of a federalism assessment.
Executive Order 13175
This direct final rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would not have a substantial direct effect 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.
Executive Order 13563
Executive Order 13563 reaffirms the principles of Executive Order
12866 while calling for improvements in the nation's regulatory system
to promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The executive order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. Executive Order 13563 also
requires that regulations be based on the open exchange of information
and perspectives among state and local officials, affected stakeholders
in the private sector, and the public as a whole. SBA has developed
this rule in a manner consistent with these requirements. While
developing this rule, SBA responded to specific inquiries from
government officials and the public regarding the implementation of the
statutory required changes.
Congressional Review Act
Subtitle E of the Small Business Regulatory Enforcement Fairness
Act of 1996 (codified at 5 U.S.C. 801-808), also known as the
Congressional Review Act or CRA, generally provides that before a rule
may take effect, the agency promulgating the rule must submit a rule
report, which includes a copy of the rule, to each House of the
Congress and to the Comptroller General of the United States. SBA will
submit a report containing this rule and other required information to
the U.S. Senate, the U.S. House of Representatives, and the Comptroller
General of the United States. A major rule under the CRA cannot take
effect until 60 days after it is published in the Federal Register.
OMB's Office of Information and Regulatory Affairs has determined that
this rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).
Paperwork Reduction Act
SBA has determined that this direct final rule does not impose
additional reporting or recordkeeping requirements under the Paperwork
Reduction Act, 44 U.S.C., Chapter 35.
Regulatory Flexibility Act
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, 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. The RFA
defines ``small entity'' to include ``small businesses,'' ``small
organization,'' and ``small governmental jurisdictions.''
This Direct Final Rule adds the U.S. Virgin Islands, American
Samoa, Guam, and the Commonwealth of the Northern Mariana Islands
(CNMI) to the list of territories from which small businesses are
eligible for preferential treatment under two government programs: the
surplus property program and the SBA mentor-prot[eacute]g[eacute]
program for government contracting. This rule relates to small business
concerns but would not affect ``small organizations'' or ``small
governmental jurisdictions'' because the programs affected generally
apply only to ``business concerns'' as defined by SBA regulations; in
other words, to small businesses organized for profit. ``Small
organizations'' or ``small governmental jurisdictions'' are non-profits
or governmental entities and do not generally qualify as ``business
concerns'' within the meaning of SBA's regulations.
SBA identified 219 small business vendors across the covered
territories for FY2021 that had sold to the Federal government and
therefore would benefit from the changes to SBA's mentor-
prot[eacute]g[eacute] program. Based on the number of small business
vendors across the covered territories affected, SBA believes that the
rule will not have an impact on a substantial number of entities nor a
significant economic impact.
Accordingly, the Administrator of the SBA hereby certifies that
this rule will not have a significant economic impact on a substantial
number of small entities. SBA invites comments from members of the
public who believe there will be a significant impact on any small
entities, including small businesses.
Administrative Procedure Act--Justification for Direct Final Rule
In general, SBA publishes a rule for public comment before issuing
a final rule, in accordance with the Administrative Procedure Act. 5
U.S.C. 553. The Administrative Procedure Act provides an exception to
this standard rulemaking process, however, where an agency finds good
cause to adopt a rule
[[Page 50927]]
without prior public participation. 5 U.S.C. 553(b)(3)(B). The good
cause requirement is satisfied when prior public participation is
impracticable, unnecessary, or contrary to the public interest.
SBA is publishing this rule as a direct final rule because public
participation is unnecessary. SBA views this as a non-controversial
administrative action because it merely implements a change required by
the Small Business Act, as amended by section 866 of NDAA FY21. This
rule will be effective on the date shown in the DATES section unless
SBA receives significant adverse comment on or before the deadline for
comments. Significant adverse comments are comments that provide strong
justifications why the rule should not be adopted or for changing the
rule. SBA does not expect to receive any significant adverse comments
because the rule simply mirrors the statutory language contained in
section 866 of NDAA FY21, with no extraneous interpretation or other
expanded text.
If SBA receives significant adverse comment, SBA will publish a
notice in the Federal Register withdrawing this rule before the
effective date. If SBA receives no significant adverse comments, the
rule will be effective 60 days after publication without further
notice.
List of Subjects
13 CFR Part 125
Government contracts, Government procurement, Reporting and
recordkeeping requirements, Small businesses, Technical assistance.
13 CFR Part 129
Administrative practice and procedure, Government contracts,
Government procurement, Government property, Reporting and
recordkeeping requirements, Small businesses.
For the reasons stated in the preamble, SBA amends 13 CFR parts 125
and 129 as follows:
PART 125-GOVERNMENT CONTRACTING PROGRAMS
0
1. The authority citation for part 125 continues to read as follows:
Authority: 15 U.S.C. 632(p), (q), 634(b)(6), 637, 644, 657b,
657(f), and 657r.
0
2. Amend Sec. 125.1 by adding a definition for ``Covered territory
business'' in alphabetical order to read as follows:
Sec. 125.1 What definitions are important to SBA's Government
Contracting Programs?
* * * * *
Covered territory business means a small business concern that has
its principal office located in one of the following:
(1) The United States Virgin Islands;
(2) American Samoa;
(3) Guam; or
(4) The Commonwealth of the Northern Mariana Islands.
* * * * *
0
3. Amend Sec. 125.9 by revising the second sentence in paragraph
(b)(3)(ii) and revising paragraph (d)(6) introductory text to read as
follows:
Sec. 125.9 What are the rules governing SBA's small business mentor-
prot[eacute]g[eacute] program?
* * * * *
(b) * * *
(3) * * *
(ii) * * * However, the first two mentor-prot[eacute]g[eacute]
relationships approved by SBA between a specific mentor and a covered
territory business, or a specific mentor and a small business that has
its principal office located in the Commonwealth of Puerto Rico, do not
count against the limit of three proteges that a mentor can have at one
time.
* * * * *
(d) * * *
(6) A mentor that provides a subcontract to its
prot[eacute]g[eacute] that is a covered territory business, or that has
its principal office located in the Commonwealth of Puerto Rico, may:
* * * * *
PART 129--CONTRACTS FOR SMALL BUSINESSES LOCATED IN DISASTER AREAS,
AND SURPLUS PERSONAL PROPERTY FOR SMALL BUSINESSES LOCATED IN
DISASTER AREAS, PUERTO RICO, AND COVERED TERRITORY BUSINESSES.
0
4. The authority citation for part 129 continues to read as follows:
Authority: 15 U.S.C. 636(j)(13)(F)(ii), (iii), and 644(f).
0
5. Revise the heading for part 129 to read as set forth above.
0
6. Revise the heading for subpart C to read as follows:
Subpart C--Surplus Personal Property for Small Businesses Located
in Puerto Rico and for Covered Territory Businesses
0
7. Amend Sec. 129.300 by revising the definition of ``Covered period''
and by adding a definition for ``Covered territory business'' in
alphabetical order to read as follows:
Sec. 129.300 What definitions are important in this subpart?
Covered period means:
(1) In the case of a Puerto Rico business, the period beginning on
August 13, 2018 and ending on the date which the Oversight Board
established under section 101 of the Puerto Rico Oversight, Management,
and Economic Stability Act (48 U.S.C. 2121) terminates. 15 U.S.C.
636(j)(13)(F)(iii); or
(2) In the case of a Covered territory business, the period
beginning on January 1, 2021, the period ending on January 1, 2025. 15
U.S.C. 636(j)(13)(f)(iii).
Covered territory business means a small business concern that has
its principal office located in one of the following:
(1) The United States Virgin Islands;
(2) American Samoa;
(3) Guam; or
(4) The Commonwealth of the Northern Mariana Islands.
* * * * *
0
8. Amend Sec. 129.301 by revising the section heading and paragraphs
(a), (b)(1), and (c)(1) introductory text and by redesignating
paragraph (f) as paragraph (e).
The revisions read as follows:
Sec. 129.301 How does a covered territory business or small business
concern located in Puerto Rico obtain Federal surplus personal
property?
(a) General. Pursuant to 15 U.S.C. 636(j)(13)(F)(iii), eligible
covered territory businesses may receive surplus Federal Government
property from their territory State Agency for Surplus Property (SASP),
and eligible small business concerns located in Puerto Rico may receive
such property from the Puerto Rico SASP. The procedures set forth in 41
CFR part 102-37 and this section will be used to transfer surplus
personal property to eligible small business concerns. The property
which may be transferred to the territory SASP or the Puerto Rico SASP
for further transfer to eligible small business concerns includes all
personal property which has become available for donation pursuant to
41 CFR 102-37.30.
(b) * * *
(1) Be a covered territory business or be located in Puerto Rico;
* * * * *
(c) * * *
(1) Eligible concerns may acquire surplus Federal personal property
from their territory SASP or, for a Puerto Rico concern, the Puerto
Rico SASP,
[[Page 50928]]
provided the concern represents and agrees in writing:
* * * * *
Isabella Casillas Guzman,
Administrator.
[FR Doc. 2022-17828 Filed 8-18-22; 8:45 am]
BILLING CODE 8026-09-P