00-23482. 8(a) Business Development/Small Disadvantaged Business Status Determinations; Rules of Procedure Governing Cases Before the Office of Hearings and Appeals

AGENCY:

Small Business Administration.

ACTION:

Direct final rule.

SUMMARY:

Due to a reorganization within the Office of General Counsel at the Small Business Administration (SBA), a new Office of Procurement Law was created to handle all procurement-related legal issues at SBA. Among other things, this new office will represent the Agency in all administrative litigation involving size and SIC code appeals, eligibility appeals relating to the 8(a) Business Development (BD) and Small Disadvantaged Business (SDB) programs, suspensions of firms in the 8(a) BD program, and appeals of denials of requests for waivers of contract performance requirements in the 8(a) BD program. This rule changes the point of contact identified in SBA's regulations for these types of administrative appeals from the Associate General Counsel for General Law to the Associate General Counsel for Procurement Law.

DATES:

This rule is effective on October 25, 2000. Comments must be submitted by October 10, 2000. If adverse comment is received, SBA will publish a timely withdrawal of the rule in the Federal Register.

ADDRESSES:

Written comments should be addressed to John W. Klein, Acting Associate General Counsel for Procurement Law, Small Business Administration, 409 Third Street, SW., Washington, DC 20416.

FOR FURTHER INFORMATION CONTACT:

Genemarie M. Pade [phone].

SUPPLEMENTARY INFORMATION:

The Small Business Administration (SBA) recently reorganized its Office of General Counsel. As a result of this reorganization, a new Office of Procurement Law was created to handle all procurement-related legal issues at SBA. Previously, procurement law issues at SBA were handled by the Office of General Law within the Office of General Counsel. The Office of General Law represented the Agency in administrative litigation involving: (1) Denials of Small Disadvantaged Business (SDB) certification; (2) denials of 8(a) Business Development (BD) program participation; (3) SIC code and size determinations; (4) suspensions of 8(a) BD program assistance; and (5) denials of requests for waivers of contract performance requirements in the 8(a) BD program. After the reorganization, the Office of General Law continues to exist, but will no longer handle procurement law issues. The Office of Procurement Law will now represent the Agency in all procurement-related appeals to SBA's Office of Hearings and Appeals. Because of this internal change at SBA, SBA's regulations need to be changed to identify the Associate General Counsel for Procurement Law as the individual upon whom copies of appeals need to be served. Thus, for the five types of appeals to SBA's Office of Hearings and Appeals identified above, this rule changes the point of contact identified in SBA's regulations for these types of administrative appeals from the Associate General Counsel for General Law to the Associate General Counsel for Procurement Law.

Compliance With Executive Orders 13132, 12988 and 12866, the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and the Paperwork Reduction Act (44 U.S.C. Chapter 3501 et seq.)

This rule is not a “significant” regulatory action under Executive Order 12866.

SBA has determined that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612. The rule is procedural and merely changes the title of the individual to whom interested parties must serve certain administrative litigation pleadings.

For the purpose of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA certifies that this rule would not impose new reporting or record keeping requirements.

For purposes of Executive Order 13132, SBA certifies that this rule does not have any federalism implications warranting the preparation of a Federalism Assessment.

For purposes of Executive Order 12988, SBA certifies that this rule is drafted, to the extent practicable, in accordance with the standards set forth in section 3 of this order.

List of Subjects

13 CFR Part 124

• Government procurement
• Hawaiian Natives
• Minority businesses
• Reporting and record keeping requirements; Technical Assistance
• Tribally-owned concerns

13 CFR Part 134

• Administrative practice and procedure
• Organization and functions (Government agencies)

Accordingly, for the reasons set forth above, SBA amends Title 13, Code of Federal Regulations (CFR), as follows:

PART 124—[AMENDED]

1. The authority citation for 13 CFR part 124 continues to read as follows:

Authority: 15 U.S.C. 634(b)(6), 636(j), 637(a), 637(d) and Pub. L. 99-661, Pub. L. 100-656, sec. 1207, Pub. L. 101-37, Pub. L. 101-574, and 42 U.S.C. 9815.

2. Section 124.1008 is amended by revising paragraph (f)(4)(i) to read as follows:

§ 124.1008

How does a firm become certified as an SDB?

* * * * *

(f) * * *

(4) * * *

(i) The firm must serve SBA's Associate General Counsel for Procurement Law with a copy of the appeal.

* * * * *

3. Section 124.1009 is amended by revising the introductory paragraph to read as follows:

§ 124.1009

How does a firm appeal a decision of a Private Certifier?

Where a Private Certifier performs an ownership and control determination and finds that a firm is not owned and controlled by the individual(s) claiming disadvantaged status, the firm may appeal that decision to OHA pursuant to part 134 of this title. The firm must serve SBA's Associate General Counsel for Procurement Law and the applicable Private Certifier with a copy of the appeal.

* * * * *

PART 134—[AMENDED]

4. The authority citation for 13 CFR part 134 continues to read as follows:

Authority: 5 U.S.C. 504; 15 U.S.C. 632, 634(b)(6), and 637(a).

5. Section 134.305 is amended by revising paragraph (b)(5) to read as follows:

§ 134.305

The appeal petition.

* * * * *

(b) * * *

(5) SBA's Office of Procurement Law.

6. Section 134.403 is amended by revising paragraph (a)(1) to read as follows:

§ 134.403

Service of appeal petition.

* * * * *

(a) * * *

(1) For appeals relating to denials of program admission pursuant to § 124.206 of this title, suspensions of program assistance pursuant to § 124.305, or denials of requests for waivers pursuant to § 124.515, a petitioner must serve the SBA's Associate General Counsel for Procurement Law.

* * * * *

Dated: August 23, 2000.

Fred P. Hochberg,

Acting Administrator.