E8-338. Seals and Insignia

AGENCY:

U.S. Small Business Administration.

ACTION:

Direct final rule.

SUMMARY:

The U.S. Small Business Administration (SBA) is revising its regulations specifying the description and authorized use of its official seal. These revisions will further define the authorized and unauthorized use of the official seal by SBA and add criteria for approving and denying requests to use the official seal.

SBA believes that this rule is non-controversial, and the Agency anticipates no significant adverse comment. If SBA receives a significant adverse comment, it will withdraw the rule.

DATES:

This rule is effective February 25, 2008 without further action, unless significant adverse comment is received by February 11, 2008. 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-AF68, by one of the following methods: (1) Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments; or (2) Mail/Hand Delivery/Courier: Julie Clowes, Attorney Advisor, Office of General Counsel, 409 Third Street, SW., Washington, DC 20416.

SBA will post all comments on http://www.Regulations.gov. If you wish to submit comments that contain confidential business information (CBI) as defined in the User Notice at http://www.Regulations.gov, please submit the comments to Julie Clowes, at 409 Third Street, SW., Washington, DC 20416, or send an e-mail to [e-mail]. Highlight the comments that you consider to contain the CBI and explain why you believe SBA should hold this information as confidential. SBA will review the information and make the final determination of whether it will publish the information or not.

FOR FURTHER INFORMATION CONTACT:

Julie Clowes, Office of General Counsel, at [phone] or by e-mail at: [e-mail].

SUPPLEMENTARY INFORMATION:

A. Statutory Authority and Background

Section 5(a) of the Small Business Act (15 U.S.C. 634(a)) gives SBA the power to adopt, alter and use a seal which shall be judicially noticed. When initially created, the official seal was only used to certify or authenticate official SBA records. SBA's regulations at 13 CFR 101.105 were narrowly constructed to reflect that one use. Through the years, the Agency has discovered a need to formally identify itself to the public through use of the official seal. This revision to 13 CFR 101.105 broadens SBA's regulatory authority to use its official seal and establishes penalties for unauthorized use.

In order to gain a better understanding of what may or may not be an appropriate use of an official Federal agency seal, SBA first researched the Federal laws affecting use of an agency's seal and the seal regulations of other Federal agencies. The research showed that use of seals by Federal agencies is rather varied. Many agencies authorize use for marketing and outreach purposes such as awards, certificates, plaques, flags, business cards, signage and publications. Because this type of use identifies with the mission of the Agency, SBA incorporated these marketing uses into the revised regulations.

Additionally, SBA identified unauthorized uses of the seal, emphasizing the need to prevent an actual or implied endorsement of a commercial product or service. A subsection on how to request written permission from the Administrator to use the SBA seal and a statement of the penalties, as defined in the U.S. Code, were also incorporated into the revised regulations.

The Agency believes there is good cause to bypass notice and comment and proceed to a direct final rule pursuant to 5 U.S.C. 553(b). The rule is non-controversial and merely alters who may use SBA's official seal and for what purpose. Because this rule only impacts Agency procedure and practice, notice and comment is unnecessary. Although SBA believes this direct final rule will not elicit any significant adverse comments, if such comments are received, SBA will publish a timely notice of withdrawal in the Federal Register.

B. Compliance With Executive Orders 12866, 12988, and 13132, the Paperwork Reduction Act (44 U.S.C. Ch. 35), and the Regulatory Flexibility Act (5 U.S.C. 601-602)

The Office of Management and Budget (OMB) has determined that this rule does not constitute a significant regulatory action under Executive Order 12866.

This rule meets applicable standards set forth in §§ 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. This action does not have retroactive or preemptive effect.

This rule will not have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, for the purposes of Executive Order 13132, SBA determines that this rule has no federalism implications warranting preparation of a federalism assessment.

SBA has determined that this rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C., Chapter 35.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, requires administrative agencies to consider the effect of their actions on small entities, small non-profit enterprises, and small local governments. Pursuant to the RFA, when an agency issues a rule, 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. In this case, the regulations address the administrative requirements for the Agency's use of its official seal. In other words, this rule will not result in the direct regulation of small entities, so no further analysis is required by the RFA. Therefore, SBA certifies that this rule will not have a significant economic impact on a substantial number of small entities within the meaning of RFA.

List of Subjects in 13 CFR Part 101

• Administrative practice and procedure
• Authority delegations
• Intergovernmental relations
• Investigations
• Organizations and functions
• Reporting and recordkeeping requirements
• Seals and insignia

For the reasons set forth in the preamble, amend part 101 of title 13 of the Code of Federal Regulations as follows:

PART 101—ADMINISTRATION

1. The authority citation for part 101 continues to read as follows:

Authority: 5 U.S.C. 552 and App. 3, secs. 2, 4(a), 6(a), and 9(a)(1)(T); 15 U.S.C. 633, 634, 687; 31 U.S.C. 6506; 44 U.S.C. 3512; E.O. 12372 (July 14, 1982), 47 FR 30959, 3 CFR, 1982 Comp., p. 197, as amended by E.O. 12416 (April 8, 1983), 48 FR 15887, 3 CFR, 1983 Comp., p. 186.

2. Revise § 101.105 to read as follows:

§ 101.105

Who may use SBA's official seal and for what purpose?

(a) General. This section describes the official seal of the SBA and prescribes rules for its use.

(b) Official Seal. The official seal of the SBA is illustrated below.

(c) Authorized Use. The official seal and reproductions of the seal may only be used as follows:

(1) Certify and authenticate originals and copies of any books, records, papers or other documents on file within SBA or extracts taken from them or to provide certification for the purposes authorized in 28 U.S.C. 1733;

(2) SBA award certificates and medals;

(3) SBA awards for career service;

(4) Security credentials and employee identification cards;

(5) Business cards for SBA employees;

(6) Official SBA signs;

(7) Plaques; the design of the SBA seal may be incorporated in plaques for display in Agency auditoriums, presentation rooms, lobbies, offices and on buildings occupied by SBA;

(8) The SBA flag;

(9) Officially authorized reports or publications of the SBA; or

(10) For such other purposes as determined necessary by the Administrator.

(d) Unauthorized use. The official seal shall not be used, except as authorized by the Administrator, in connection with:

(1) Contractor operated facilities;

(2) Souvenir or novelty items;

(3) Toys or commercial gifts or premiums;

(4) Letterhead design, except on official SBA stationery;

(5) Clothing or equipment; or

(6) Any article which may disparage the seal or reflect unfavorably upon SBA.

(e) SBA's seal will not be used in any manner which implies SBA endorsement of commercial products or services or of the user's policies or activities.

(f) Reproduction of Official Seal. Requests for permission to reproduce the SBA seal in circumstances other than those listed in paragraph (c) of this section must be made in writing to the Administrator. The decision whether to grant permission will be made in writing on a case-by-case basis, in consultation with the General Counsel, with consideration of any relevant factors which may include the benefit or cost to the Agency of granting the request; the unintended appearance of endorsement or authentication by SBA; the potential for misuse; the reputability of the use; the extent of control by SBA over the use; and the extent of control by SBA over distribution of any products or publications bearing the SBA seal.

(g) Penalties for Unauthorized Use. Fraudulent or wrongful use of SBA's seal can lead to criminal penalties under 18 U.S.C. 506 or 18 U.S.C. 1017.

Dated: January 4, 2008.

Steven C. Preston,

Administrator.