2024-19859. Tribal Consultation for HUBZone Program Updates and Clarifications and Potential Reforms

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Small Business Administration

1. 13 CFR Part 126

AGENCY:

U.S. Small Business Administration.

ACTION:

Notification of Tribal consultation meeting; request for comments.

SUMMARY:

The U.S. Small Business Administration (SBA or Agency) announces that it is holding a Tribal consultation meeting in Washington, DC, concerning forthcoming proposed revisions to the Historically Underutilized Business Zone (HUBZone) program regulations. The proposed rule would amend the 8(a) Business Development (BD) and size regulations to clarify certain policies. Additionally, SBA requests comments and input on how best to implement the Executive order entitled “Reforming Federal Funding and Support for Tribal Nations To Better Embrace Our Trust Responsibilities and Promote the Next Era of Tribal Self-Determination,” which, among other things, calls on agencies to increase the accessibility, equity, flexibility, and utility of Federal funding and support programs for Tribal Nations. SBA is also seeking comments on prospective policy changes addressing joint venture participation in SBA's programs. Testimony presented at this Tribal consultation will become part of the administrative record for SBA's consideration when the Agency deliberates on approaches to changes in the HUBZone and 8(a) BD program regulations.

DATES:

The meeting is Monday, September 23, 2024, 2 p.m. to 5 p.m. (Eastern Daylight Time (EDT). Pre-registration for this Tribal consultation meeting is requested by September 16, 2024.

ADDRESSES:

Meeting Locations:

1. The in-person Tribal consultation meeting in Washington, DC will be held at SBA Headquarters, 409 Third Street SW, Washington, DC 20416.

2. The virtual portion of the Tribal consultation meeting will be hosted on Microsoft Teams. A subscription to Microsoft Teams is not required to participate. SBA will provide further information, including a direct invitation link to the meeting, upon registration.

Commenters and attendees may participate in-person or remotely at this consultation meeting.

Pre-registration: Send pre-registration requests to attend and/or testify to Chequita Carter of SBA's Office of Native American Affairs, U.S. Small Business Administration, 409 3rd Street SW, Washington, DC 20416; [e-mail]; or Facsimile to [phone].

Comments: You may submit comments by any of the following methods:

• Email: to Jackson S. Brossy, Assistant Administrator, Office of Native American Affairs, U.S. Small Business Administration, at [e-mail].
• Mail (for paper, disk, or CD-ROM submissions): to Jackson S. Brossy, Assistant Administrator, Office of Native American Affairs, U.S. Small Business Administration, 409 3rd Street SW, Washington, DC 20416.

Instructions: All submissions received will become part of the administrative record for any rulemaking resulting from these Tribal consultation meetings and listening session. As such, comments received may be posted 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 comments to Jackson S. Brossy and highlight the information that you consider to be CBI and explain why you believe this information should be held confidential. SBA will make a final determination as to whether the comments will be published.

FOR FURTHER INFORMATION CONTACT:

Chequita Carter, Program Assistant for SBA's Office of Native American Affairs, at [e-mail] or [phone] or by facsimile to [phone]. This phone number can also be reached by individuals who are deaf or hard of hearing, or who have speech disabilities, through the Federal Communications Commission's TTY-Based Telecommunications Relay Service teletype service at 711.

SUPPLEMENTARY INFORMATION:

I. Background

SBA issued a proposed rule concerning the HUBZone program regulations under RIN 3245-AH68. 89 FR 68274 (Aug. 23, 2024). The proposed rule is intended to clarify and improve several regulatory provisions, including those governing HUBZone contract eligibility. The proposed rule would also make several changes to SBA's size and 8(a) Business Development (BD) program regulations. In particular, the rulemaking would consolidate and redesignate the separate recertification requirements for SBA's size, 8(a) BD, HUBZone, Woman-Owned Small Business, and Service-Disabled Veteran-Owned Small Business programs to a new section to reduce confusion and to ensure consistent application of the size and status recertification requirements. SBA anticipates the proposed rule will be published prior to the Tribal consultation meeting announced in this document.

In addition to the above referenced regulatory proposals, SBA is asking for input on how best to implement Executive Order (E.O.) 14112, Reforming Federal Funding and Support for Tribal Nations To Better Embrace Our Trust Responsibilities and Promote the Next Era of Tribal Self-Determination, which was signed by the President on December 6, 2023. This E.O. directs agencies to identify and execute policy reforms designed to promote accessible, equitable, and flexible administration of Federal funding and support programs for Tribal Nations to better live up to the Federal Government's trust responsibilities and help address the needs of all Tribal Nations. SBA has identified several potential opportunities for improvement, including the current requirements for personal guarantees and a waiver of sovereign immunity for 7(a) loans to tribally-owned business concerns, as well as the match funding requirement applicable to grants awarded by Native-serving entrepreneurship organizations, such as Small Business Development Centers and Community Development Financial Institutions. SBA is seeking comments on these and other potential reforms to reduce burdens and improve the accessibility of SBA's programs for Tribal stakeholders. Additionally, the Agency requests input on a change SBA has already made to address the ( print page 72764) business and economic development needs of Tribal Nations. Specifically, SBA's Assistant Administrator for Native American Affairs (ONAA)—who previously reported to the Associate Administrator for the Office of Entrepreneurial Development—now reports directly to the SBA Administrator. SBA would like to better understand whether Tribal Nations wish to continue with this current organization and reporting structure.

Lastly, SBA is requesting comments on other prospective policy changes addressing joint venture participation in SBA programs. Any such policy changes would be addressed in a separate proposed rulemaking action after considering comments and testimony from this tribal consultation meeting. Specifically, SBA is seeking input on the perception that mentor-protégé joint ventures are winning an inordinate number of orders issued under small business multiple award contracts and seeks suggestions on how to incentivize a more equitable marketplace for individual small businesses who compete against mentor-protégé joint ventures for multiple award, small business contracts. There is also a perception that small businesses often enter joint ventures to seek multiple award contract awards because procuring agency past performance and experience requirements make it difficult for many small businesses to qualify for the awards individually. SBA is considering whether to propose eliminating the exception to affiliation between an SBA-approved mentor and its protégé for multiple award contracts to address this concern. Such a change would continue to allow joint ventures to seek and be awarded single award small business contracts, but would make joint ventures ineligible for multiple award contracts. If that would occur, SBA would expect the past performance and experience required for award of future multiple award contracts to be adjusted to allow individual small businesses to more easily qualify for award.

Another potential approach would be to allow an exclusion from affiliation for a joint venture between a protégé firm and its mentor only for contracts or orders that do not exceed five years. As SBA has previously stated, SBA believes that a joint venture should not be an on-going entity, but something with limited scope and limited duration. Thus, SBA has limited the duration that a joint venture can submit offers for the award of contracts to two years from the date of its first contract award. SBA is questioning whether a joint venture performing a contract or order that exceeds five years is truly a limited duration entity.

Specific to qualified HUBZone protégé firms participating in the Mentor-Protégé Program, SBA is considering steps to clarify the applicability of the HUBZone price evaluation preference to HUBZone joint ventures formed under the Mentor-Protégé Program. Under the HUBZone price evaluation preference, where a procuring agency will award a contract on an unrestricted basis ( i.e., full and open competition), the agency must deem the price offered by a certified HUBZone small business concern (including a HUBZone joint venture that complies with the requirements of § 126.616) to be lower than the price offered by an apparent successful large business offeror if the price offered by the certified HUBZone small business concern is not more than 10% higher than the price offered by the large business. SBA is requesting comments and input on whether it is appropriate for a HUBZone mentor-protégé joint venture to benefit from the HUBZone price evaluation preference when the joint venture is already benefitting from its large business mentor's lower cost structures and pricing. SBA is considering whether to propose eliminating the HUBZone price evaluation preference's applicability to all joint ventures formed under the Mentor-Protégé Program or, alternatively, to offers submitting by a HUBZone joint venture where the mentor exceeds the applicable size standard corresponding to the North American Industry Classification System (NAICS) code assigned to the contract.

II. Tribal Consultation Meeting

The purpose of this Tribal consultation meeting is to conform to the requirements of E.O. 13175, Consultation and Coordination With Indian Tribal Governments (65 FR 67249), and SBA's Tribal Consultation Policy ( https://www.sba.gov/​document/​support-sba-tribal-consultation-policy); to provide interested parties with an opportunity to discuss their views on the issues; and for SBA to obtain the views of SBA's stakeholders on approaches to the HUBZone and 8(a) BD regulations. SBA considers Tribal consultation meetings a valuable component of its deliberations and believes that this Tribal consultation meeting will allow for constructive dialogue with the Tribal community, Tribal Leaders, Tribal Elders, elected members of Alaska Native Villages or their appointed representatives, and principals of tribally-owned and Alaska Native Corporation (ANC)-owned firms participating in the 8(a) BD program.

The format of this Tribal consultation meetings will consist of a panel of SBA representatives who will preside over the session. The oral and written testimony as well as any comments SBA receives will become part of the administrative record for SBA's consideration. Written testimony may be submitted in lieu of oral testimony. SBA will analyze the testimony, both oral and written, along with any written comments received. SBA officials may ask questions of a presenter to clarify or further explain the testimony. The purpose of the Tribal consultation is to assist SBA with gathering information to guide SBA's review process and to potentially develop new proposals. SBA requests that the comments pertain to SBA's planned rulemaking concerning the HUBZone and 8(a) BD programs, general issues as they pertain to the HUBZone and 8(a) BD regulations, opportunities for reform under E.O. 14112, or the unique concerns of the Tribal communities. Presenters are encouraged to provide a written copy of their testimony. SBA will accept written material that the presenter wishes to provide that further supplements his or her testimony. Electronic or digitized copies are encouraged.

The hybrid meeting in Washington, DC will begin at 2 p.m. and end at 5 p.m. (EDT). All registered speakers will have an opportunity to provide testimony. SBA may adjourn early if all those scheduled have delivered their testimony.

III. Registration

SBA respectfully requests that any elected or appointed representative of the Tribal communities or principal of a tribally-owned, ANC-owned, or Native Hawaiian Organization (NHO)-owned 8(a) firm that is interested in attending please pre-register in advance and indicate whether you would like to testify at the hearing. Pre-registration is not required for attendance at either the in-person or virtual portion of the consultation meeting and the Microsoft Teams invitation link for the virtual consultation meeting is a general link that may be shared with others. However, attendees of the virtual consultation meeting who would like to receive the link directly from SBA must pre-register. SBA requests that attendees register with SBA no later than: September 16, 2024. To register, please contact Chequita Carter of SBA's Office of Native American Affairs in writing at [e-mail] or by facsimile to [phone]. If you are interested in testifying, please include the ( print page 72765) following information relating to the person testifying: Name, Organization affiliation, Address, Telephone number, Email address and Fax number. SBA will attempt to accommodate all interested parties that wish to present testimony. Based on the number of registrants it may be necessary to impose time limits to ensure that everyone who wishes to testify has the opportunity to do so. SBA will confirm in writing the registration of presenters and attendees.

IV. Information on Service for Individuals With Disabilities

For information on facilities or services for individuals with disabilities or to request special assistance at the Tribal consultation meeting, contact Chequita Carter at the telephone number or email address indicated under the FOR FURTHER INFORMATION CONTACT section of this document.

Authority: 15 U.S.C. 634 and E.O. 13175, 65 FR 67249.

Jackson S. Brossy,

Assistant Administrator, Office of Native American Affairs.